Rakesh Malhotra vs. Krishna Malhotra (07.02.2026 - SC) : MANU/SC/0338/2020
9. The basic issue that arises for consideration is whether after grant of permanent alimony Under Section 25 of the Act, a prayer can be made before the Magistrate Under Section 125 of the Code for maintenance over and above what has been granted by the Court while exercising power Under Section 25 of the Act. At this Juncture, Section 25 of the Act may be extracted as under:
25. Permanent alimony and maintenance.
(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the Respondent shall [***] pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the Respondent’s own income and other property, if any, the income and other property of the applicant [***] the conduct of the parties arid other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the Respondent.
(2) If the court is satisfied that there is a change in the circumstances- of either party at any time after it has made an order Under Sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.
(3) If the court is satisfied that the party in whose favour an order has been made under this Section has remarried or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].
10. Section 25(1) of the Act empowers the Court, while passing any decree, to consider the status of the parties and whether any arrangement needs to be made in favour of the wife or the husband; and by way of permanent alimony, an order granting maintenance can also be passed by the Court.
11. At the stage of passing a decree for dissolution of marriage, the Court thus considers not only the earning capacity of the respective parties, the status of the parties as well as various other issues. The determination so made by the Court has an element of permanency involved in the matter. However, the Parliament has designedly kept a window open in the form of Sub-sections (2) and (3) in that, in case there be any change in circumstances, the aggrieved party can approach the Court Under Sub-section (2) or (3) and ask for variation/modification.
12. Since the basic order was passed by the concerned Court Under Section 25(1), by very nature, the order of modification/variation can also be passed by the concerned Court exercising power Under Section 25(2) or 25(3) of the Act.
13. In the present case, the matter that was considered by the High Court was one which was filed in the year 2005 when the matrimonial dispute between the parties was yet to be adjudicated upon while the decree for dissolution and direction for permanent alimony came to be passed in the year 2013 against which the First Appeal is pending in the High Court.
14. We have been apprised that certain applications have been preferred by the Appellant-husband seeking variation/modification in the sum of permanent alimony submitting, inter alia, that after passing of the order, the Appellant has retired from Army and as such is not getting emoluments at the same rate.
15. Ms. Shakil, amicus curiae invited our attention to some decisions including the decision of this Court in Sudeep Chaudhary v. Radha Chaudhary MANU/SC/1699/1997 : (1997) 11 SCC 286. This decision was relied upon by the High Court while passing the order under appeal. In Sudeep Chaudhary, the initial order was passed by the Magistrate Under Section 125 of the Code and subsequently in proceedings under the Act, interim maintenance was granted while exercising power Under Section 24. It was in the context of these facts, this Court observed that despite the award of maintenance Under Section 125 of the Code, the wife was competent to maintain the proceedings Under Section 24 of the Act. But the present case is completely to the contrary.
16. Since the Parliament has empowered the Court Under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequitur would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application Under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act Or similar such enactments. But the reverse cannot be the accepted norm.
17. In the circumstances, we allow these appeals, set aside the view taken by the High Court and direct that the application preferred Under Section 125 of the Code shall be treated and considered as one preferred Under Section 25(2) of the Act.
18. Since the matter pertains to grant of maintenance, we request the High Court to consider disposing of First Appeal No. 109/2013 alongwith all pending applications as early as possible and preferably within six months from today.
19. Before we part, we must record that by way of order dated 13.12.2019, we had directed the Respondent-husband to file an affidavit giving details about the amounts that he had made over to the Respondent-wife by way of maintenance as awarded by order dated 20.02.2013. In pursuance of said directions, an affidavit has been filed by the Appellant on 03.02.2026 indicating that fill now he has deposited ` 11,44,916/- in Respondent-wife’s account, in terms of order dated 20.02.2013.
20. Finally, we must express our sincere gratitude for the assistance rendered by Ms Fauzia Shakil, learned amicus curiae.
21. These appeals are allowed in aforesaid terms. No costs.
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