Tag Archives: Husband & Wife

Order for – Interim Maintenance

An order under Section 24 of the Hindu Marriage Act, 1955 does not decide in any manner rights and liabilities of the parties raised in matrimonial petition. The lis in matrimonial petition continues even after disposal of the application under Section 24 of the Act, 1955 as the object of the provision is to enable the indigent, weaker spouse to resist the action of others and to maintain himself or herself, as the case may be. The maintenance awarded under Section 24 of the Act, therefore, can only be said to be an interim maintenance, which would be payable during the continuance of the substantive proceedings under the Act. However, with the termination of the said proceedings, the order under Section 24 of the Act, will lose its efficacy. That means that the said order cannot inure after termination of petition.

       Further, that no appeal shall lie against an interlocutory order under Section 19(1) of the Family Courts Act, 1984, the appeal filed against the order under Section 24 of the Hindu Marriage Act, 1955 cannot be said to be in continuation of the original proceedings. Smt. Madhu Mishra v. Prem Kumar Mishra, 2019 (1) AWC 761.

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Disclosure Regarding Previous Marriage

      On a careful reading of Clause (c) ofSection 12(1) of the Hindu Marriage Act, it will appear that both the partiesin case of adult are obliged to divulge mutually and unequivocally the materialfact or circumstances to each other before or at least at the time of marriageso much so that element of deception is ruled out. The words material fact orcircumstances have not been defined or specified. It varies from one family toanother, according to culture, ethos and social system in ages and situation.For example in a conservative family having attachment with puritan society ina marriage inevitable and unerring expectation is that both the bride and groommust not have any record of prior marriage in any sense nor will have anymarriage in any sense, not even any premarital affairs with other boy or girl(as the case may be). They cannot think of even marrying outside their caste andcommunity, conversely, a family with liberal and cosmopolitan approach, thought,particularly in urban area will not mind in case of marriage even havingknowledge of background of prior marriage or premarital affair with other sexoutside their caste and community. In case of former, concealment of caste,community or background of prior marriage or premarital affairs before or atthe time of marriage is obviously extremely material and it amounts to fraud inobtaining consent.

       In the case of Saswati Chattopadhyaya v. Avik Chattopadhyaya, (2011) 3 ICC 51, the husband was not informed about the earlier marriage at the time of negotiation or at the time of solemnization of marriage. On inquiry, the husband came to know that there had been previous marriage of the appellant with one Sudip and it was also discovered that the earler marriage was dissolved by consent. When the matter reached the family court, it came to the conclusion that there has been suppression of the relevant fact with regard to the premarital status of the appellant and such relevant fact goes to the root of the matrimonial relationship. Pradeep Kumar Maheshwari v. Smt. Anita Agarwal, 2018 (131) ALR 566.

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Permanent Alimony – After Passing of Divorce Decree

In the event 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 Hindu Marriage 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 thereafter. Smt. Poonam Sharma v. Vishnu Kumar, 2018 (130) ALR 490.

 

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