Whether wife can initiate proceeding for permanent alimony after decree of divorce?


First Appeal No. 402 of 2018

Decided On: 24.05.2018

Poonam Sharma
Vishnu Kumar

Hon’ble Judges/Coram:Pankaj Mithal and Rajiv Joshi, JJ.

Citation : 2018 (130) ALR 490

1. Heard Sri Rajesh Kumar Mishra, learned counsel for the appellant-wife. The appellant-wife initiated proceedings under Section 13 of the Hindu Marriage Act (hereinafter referred to as the Act) for the dissolution of her marriage with the respondent-husband. The aforesaid petition has been allowed by the impugned judgment and order dated 18.4.2018 passed by the Family Court.

2. Despite the fact that the decree of divorce has been passed as prayed by the appellant-wife, she still feels aggrieved for the reason that no permanent alimony has been granted, the Court has not adjudicated about custody and maintenance of the minor daughter and that the properties of the parties have not been apportioned.

3. The decree of divorce is in favour of the appellant-wife. Therefore, she is not aggrieved by the same.

4. In the event the permanent alimony has not been granted probably for the reason that no such application was moved and pressed for, the same can be applied even after passing of the decree. Section 25 of the Act itself envisages that the wife can initiate proceedings for grant of permanent alimony even after the decree of divorce. Therefore, the Court does not become functus officio with the passing of the decree and continues to have jurisdiction to award alimony even thereafter.

5. The maintenance part of the minor child/daughter, can be taken care at the time of deciding permanent alimony. Apart from it, the substantive provision for maintenance is under the Adoption and Maintenance Act and the maintenance for the daughter if at all can be claimed thereunder.

6. Section 26 of the Act provides that in the proceedings under the Act, the Court may from time to time pass interim order with regard to the custody of the minor child but final adjudication of the guardianship and custody, has to be under the provisions of the Guardians and Wards Act, for which the parties have to draw separate proceedings.

7. In so far as the last submission of the learned counsel for the appellant regarding disposal/apportionment of the properties of the parties under Section 27 is concerned, we do not find any pleading or any prayer in this regard. Learned counsel for the appellant has fairly accepted that no separate application under Section 27 was filed.

8. In view of the above, the Family Court has not committed any error in not dealing with the joint properties of the parties while passing the decree of divorce.

9. The appeal as such lacks merit and is dismissed, leaving it open to the appellant-wife to initiate proceedings for the reliefs which she otherwise intends to get/claim by taking recourse to appropriate proceedings in law. The appeal stands dismissed.

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