Chief Justice's Court
Case :- FIRST APPEAL No. - 275 of 2019 Appellant :- Deepti Sharma Respondent :- Amit Chaudhary Counsel for Appellant :- In Person Counsel for Respondent :- In Person,Jagdev Singh
Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma,J.
Learned Judge, Family Court/Fast Track Court 1, Agra by the order impugned dated 25th February, 2019 by invoking powers under Order VII, Rule 11 of the Code of Civil Procedure, 1908 rejected an application preferred by the appellant as per provisions of Section 25 of the Hindu Marriage Act, 1955. The Family Court while rejecting the application, left it open for the appellant to file an application afresh by satisfying the requirements of law, especially with regard to disclosure of the cause of action while filing the application.
As per the court below, Section 21 of the Act of 1955 prescribes that subject to the provisions contained in the Act of 1955 and the Rules framed by the High Court in that behalf, all proceedings under the Hindu Marriage Act shall be governed as far as may be by the Code of Civil Procedure, 1908 and in the instant matter, in the application preferred by the appellant no reference is given as to when cause of action arose.
On going through the application preferred by the appellant, it reveals that an averment is made to the effect that the applicant is having no means of income and as such she is in dire need of permanent alimony as well as maintenance.
It is also pertinent to state that permanent alimony and maintenance as per Section 25 of the Act of 1955 can be claimed at the time of passing any decree and at any time subsequent thereto. No limitation under the Act of 1955 is prescribed to file such an application.
The Court is required to see as to whether the person claiming alimony or maintenance satisfies the requirement of sub- Section (1) of Section 25 of the Act of 1955 or not. If any averment satisfies such requirement, then the court must entertain and adjudicate such application. This is all the more required looking to the provisions of the Family Courts Act, 1984, which was enacted with a view to promote conciliation and settlement of disputes related to marriage and family affairs. Under the Act there is a bar for representation of parties through the counsel except in certain specific eventualities and by having permission of the court. A Family Court is not supposed to adhere the technicalities like a civil court. Such a court must make all efforts to settle family disputes amicably or by adjudication on the scale of law by ignoring formal technicalities.
In the case in hand, the application has been dismissed by the Family Court only on the count that an assertion is not there in the application about the date on which cause of action arose and under that there is no cause of action available to file such application. The court should have looked into contents of the application and should have then arrived at a definite conclusion.
As already stated, in the instant matter the appellant in quite unambiguous terms stated that she is not having any source of income and, therefore, she is in need of permanent alimony. A cause of action hence, exists. The order impugned dated 25th February, 2019 is apparently bad. The same therefore, deserves to be set aside.
Accordingly, the application is allowed. The order dated 25th February, 2019 is set aside. The application preferred by the appellant under Section 25 of Hindu Marriage Act, 1955 stands restored at its original number. The application is remanded for adjudication afresh on merits to the court of Additional Principal Judge, Family Court, Agra for its adjudication. The application is required to be adjudicated and decided within a period of three months from the date the parties appear before it. The parties to the proceedings are directed to appear before the Additional Principal Judge, Family Court, Agra on 6th January, 2020.
Order Date :- 20.12.2019 Bhaskar (Vivek Varma, J.) (Govind Mathur, C.J.)