ALLAHABAD HIGH COURT

                 Vinod Chandra Sharma

                 Vs.

                 Smt. Rajesh Pathak

First appeal from Order No. 154 of 1984 Aligarh dated 19.1.1984

                 (V.P. Mathur, J.)

                 25.02.1987

                 JUDGMENT

V.P. Mathur, J.

1. This First Appeal From Order, passed by Mr. R.S. Tripathi, the then Vth
Additional District Judge, on 19.1.1984, in Misc. Case No. 39 of 1983, is
directed against an order granting permanent alimony under Section 25 of the
Hindu Marriage Act, 1955 to the respondent.

2. Briefly stated, the proceedings for a decree of divorce were going on in the
Court below between the parties at the instance of the husband Vinod Chandra
Sharma. The learned Additional District Judge dismissed the petition for
divorce on 19.1.1984 and by the present impugned order of the same date he
passed the order granting Rs. 350/- per month as permanent alimony in favor of
the wife and against the husband. It is contended that this order is patently
illegal and cannot be allowed to stand.

3. I have heard the learned counsel on both the sides. Permanent alimony and
maintenance under Section 25 of the Hindu Marriage Act can only be granted if
divorce is granted but not during the subsistence of the marriage. The word
'decree' is used in matrimonial cases in a special sense different from that in
which it is used in the Civil Procedure Code. The use of the word 'decree' in
Section 25 of the Hindu Marriage Act means the passing of the decree of
divorce, restitution of conjugal rights or judicial separation and not the passing
of a decree through which the petition itself is dismissed because if the petition
fails then no decree is passed. In other words, in such cases decree is denied to
the appellant. Obviously, alimony cannot, therefore, be granted in a case where
a decree for divorce is refused because in such a case the marriage will subsist.

4. The power to grant alimony, contained in Section 25 of the Hindu Marriage
Act, has to be exercised when the Court is called upon to settle the mutual
rights of the parties after the marital ties have snapped by determination or
variation by the passing of the decree of a type mentioned in Sections 10, 11
and 13 of the Act, read with Section 23, 26 and 27 of the Act, a decree can be
assumed to have been passed when an application is dismissed.

5. A Division Bench of the High Court at Delhi was also of the same view in
the matter of Smt. Susham v. Shri Satish Chander, 1 The learned counsel for the
respondent concedes the legal position.

6. As such the appeal is allowed and the impugned order dated 19.1.1984,
passed by Mr. R.S. Tripathi, Vth Additional District Judge, Aligarh, granting
alimony at the rate of Rs. 350/- per month to the respondent against the
appellant is set aside. The parties shall bear their own costs in the special
circumstances of the case.

Appeal allowed.

Cases Referred.

1. AIR 1984 Del 1