In Chand Dhawan v. Jawaharlal Dhawan, concerning permanent maintenance and alimony, Punchhi, J., posed the question: "Is the payment of alimony admissible without the relationship between the spouses being terminated?"

It is submitted that what the learned judge probably meant to say was: Could the matrimonial court pass an order for permanent alimony and maintenance without granting relief in a matrimonial cause? When a court issues a decree granting judicial separation or restitution of conjugal rights, it has the power to make an order for alimony and maintenance, even though the relationship between the spouses is not terminated.

Similarly, when a court issues a decree declaring a marriage void, the court does not terminate the relationship, as there is, in fact, no relationship between the parties. Yet, the court has the power to make an order for permanent alimony and maintenance. However, apart from this, the substantial question is: Does the matrimonial court have the power to pass an order for permanent alimony and maintenance, even when the main petition in a matrimonial cause is dismissed, given that the former proceedings are ancillary to the latter?

The Indian laws regarding matrimonial causes and ancillary reliefs have been derived from English law, whether it pertains to Hindu law, Christian law, Parsi law, or even the Special Marriage Act. Unfortunately, we have kept ourselves abreast of English matrimonial law only up to the Matrimonial Causes Act of 1950 and thereafter have gone into oblivion regarding its later developments.

We continue to refuse to acknowledge these legislative changes, even though some of their beneficial provisions do need our attention. For instance, since 1950, English matrimonial law has made great strides. Alimony and maintenance, as well as custody maintenance and education of children, are no longer considered ancillary matters. Once a matrimonial court is seized of a matrimonial cause, it continues to exercise jurisdiction over all matters, even if no relief is granted in the matrimonial cause.

Yet, we continue to refer to maintenance, alimony, custody, and the education of children as ancillary proceedings and want to interpret the word "ancillary" in a technical and mechanical manner, as collateral proceedings that cannot survive if the main proceedings are dismissed.

When called upon to interpret the provisions of the Divorce Act of 1869 regarding maintenance and alimony, Indian courts adhered to the position of English law and held that these proceedings are linked to the proceedings in a matrimonial cause. However, under the Hindu Marriage Act of 1955, some of our High Courts boldly took the view that when the main proceedings are dismissed, they still retain jurisdiction over the so-called ancillary matters. But these decisions have now been overruled by the Chand Dhawan case.

These cases are being reviewed to find the rationale behind them, as well as that of the Chand Dhawan case, in light of the constitutional mandate of social justice. These cases are being grouped into two categories: (1) Ancillary proceedings for maintenance and alimony in restitution of conjugal rights proceedings, and (2) in divorce and judicial separation proceedings.

Written By: S Kundu & Associates
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