In making an order under S. 25, the Court must have regarded to-
(i) The respondent’s own income and other property, if any;
(ii) The income and other property of the applicant;
(iii) The conduct of the parties; and
(iv) The other circumstances of the case.
Further, the payment ordered by the Court may be secured, if necessary, by a charge on the immovable property of the Respondent.
Formerly, such an application could be made to the Court only if the applicant had not remarried. However, this restriction was removed by the 1976 Amendment.
It will be seen that an order for permanent alimony or maintenance under this section can be made not only in favour of the wife, but also in favour of the husband. In making this provision, S. 25 makes a bold departure for analogous matrimonial legislation. Even under the Special Marriage Act, 1954, it is only the wife who is entitled to alimony or maintenance.
In Narayanaswami v. Padmanabhan (1966 A.M. 394), the Court held that a second wife, whose marriage with the Respondent was a nullity on the ground that he had a wife living at the time of his marriage with her, is not entitled to alimony or maintenance under this Section. It is submitted with respect that this view is not sound, because S. 25 would also cover the case of a marriage which is void under S. 11, read with S. 5 of the Act.
As in the case of S. 24, the Court has ample discretion under this Section, and it has to exercise this discretion in a judicial manner, in light of the circumstances of each case. So wide is the discretion of the Court in the matter, that it appears that it can, under this section, make an order in favour of a wife, even if a decree for judicial separation has been passed against her on the ground of adultery or cruelty or desertion on her part.
However, this proposition is not entirely free from doubt, and there is a conflict of decisions on the point. The Kerala High Court, for instance, has held that if the Court orders judicial separation against the wife on the ground of her unchastity, no order for maintenance can be passed in her favour, because in these circumstances, the Court has no discretion in the matter. The Calcutta High Court has, however, differed from the view, and has held that, even in such a case, the Court does have discretion in the matter.
In a case before the Bombay High Court, an interesting question arose as to whether a Hindu woman, whose marriage has been declared null and void, is entitled to maintenance from her former spouse. On behalf of the husband, it was argued that the words “wife” and “husband’ used in, S. 24 of the Act could mean only a lawfully wedded Hindu wife and a lawfully wedded Hindu husband.
Rejecting this argument, the Court held that these words would also include persons who have gone through a ceremony of marriage, which would have conferred the status of a husband and wife on them, but for the provisions of S. 5. and S. 11 of the Act. Moreover, S. 25 allows the Court to award maintenance at the time of passing any decree under the Act. Now, a decree for nullity is one such decree, and therefore, a Court can award maintenance in such cases also. (Govindrawo Mulsale v. Anandibai Mulsale, 79 B.L.R. 73)
It is also provided that if the Court is satisfied that there is a change in the circumstances of either party at any subsequent time, it may, at the instance of either party, vary, modify or rescind any earlier order passed by it.
Further, if the Court is satisfied that the spouse in whose favour an order has been made has re-married, it can rescind the order. The Court can similarly rescind the order if it is satisfied, in the case of the wife that she has not remained chaste, or in the case of a husband that he had sexual intercourse with any woman outside wedlock.
Lastly, it must be remembered that the right to maintenance is a statutory right, and therefore, a party cannot contract himself (or herself) out of the same. Thus, a wife cannot bind herself under an agreement with her husband to forgo her right of applying to the Court for maintenance in case of matrimonial proceedings between them. (Hayman v. Hayman, 1929 A.C. 601)
Savings (S. 29):
A savings clause is generally inserted where there is a repeal of any existing law and re-enactment of the law on the same subject. Such a clause is also inserted at times when it is necessary to exempt something from the operation of an Act, which would otherwise have been covered.
S. 29 of the Act contains a similar savings clause in respect of certain matters, the net effect of which is as follows:
(1) A Hindu marriage solemnized before the Act, which is otherwise valid, is not deemed to be invalid, only on the ground that the parties thereto belonged to the same gotra or pravara, or belonged to different religions, castes or subdivisions of the same caste.
(2) No provision in the Act is to affect any right recognised by custom or conferred by any special Act to obtain dissolution of a Hindu marriage, whether solemnized before or after the Act.
(3) No provision in the Act is to affect any proceeding, under any law for the time being in force, for declaring any marriage to be null and void, or for annulling or dissolving any marriage or for judicial separation, pending at the commencement of the Act. Such a proceeding is to be continued and determined as if this Act has not been passed.
(4) Similarly, no provisions in the Act is to affect the provisions of the Special Marriage Act, 1954, as regards marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act.