A husband will have to pay permanent alimony even if he has won the case for divorce against his wife for matrimonial offences she has committed.
The High Court has said that under the Indian Divorce Act 1869 under which Christians can seek divorce, alimony cannot be denied on grounds that the wife should constitute and win a suit for divorce.
The husband had filed the divorce case while the wife had contested it. Since both are Roman Catholic Christians, their marriage is governed by the Indian Divorce Act, 1869. They married in 1995. In 1999, the husband filed for divorce under the Act while the wife filed a case for restitution of conjugal rights. The two cases were clubbed. By an interim application, she sought interim maintenance.
The family court allowed the husband’s petition and rejected the prayer of the wife for restitution of conjugal rights. It also rejected her application for permanent alimony filed under Section 37 of the Act. Their marriage was dissolved by a family court in Mangaluru in August 2011. The wife approached the HC. Her counsel told the court that her claim in the appeal is restricted to seeking reasonable amount in lumpsum as permanent alimony as “she is a housewife having no other avocation or income and the husband being financially sound.”
The husband’s advocate argued that the husband had won the case in the lower court on the grounds of desertion and cruelty. His argument was that “only when a decree of dissolution of marriage is obtained by the wife, the court can order for alimony either in lump sum or periodically in favour of the wife.” It was further argued that “since the wife herself is guilty of matrimonial offence in this case, she is not entitled for any maintenance and the prayer of the wife cannot be entertained.”
In its judgment, the HC said, “The contention that the wife is not entitled for permanent alimony in a case where dissolution of marriage is granted in favour of the husband may not be the correct position.” The HC noted that Section 38 the Act “does not debar a wife who was respondent in divorce petition for permanent alimony.”
The lower court had rejected separate permanent alimony as she was enjoying maintenance amount of Rs 2,500 month by another order and she could seek enhancement.
(Originally published in The Times of India)