Manoj Kumar Gogoi vs Priyanka Gogoi

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GAHC010167392023

2026:GAU-AS:7513


IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

Mat.App./38/2023

Sri Manoj Kumar Gogoi,
S/o- Sri Madan Chandra Gogoi,
C/o-Sri Jintu Gogoi,
R/o- No. 1 Charing Baruwati Gaon,
P.O.-Charing, P.S. Gaurisagar,
Sivasagar, Assam.
Presently, Residing at
Kalibari Bhabani Path,
Phukan Nagar, Ward No. 10,
P.O. & P.S. Sivasagar,
District- Sivasagar, Assam.

…..Appellant

-Versus-

Smti Priyanka Gogoi,
Daughter of Sri Rudra Gogoi,
Resident of Amguri, Ward No. 4,
P.O. & P.S. Amguri,
District- Sivasagar, Assam-785680.


……Respondent





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BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA


Advocate for appellant

: Mr. R. De, Advocate
Advocate for respondent : Mr. P. Saikia, Advocate

Date on which judgment is
reserved

: 17.02.2026
Date of pronouncement of
judgment

: 29.05.2026
Whether the pronouncement is of
the Operative part of the judgment

: N/A

Whether the full judgment has
been pronounced
: Yes

Judgment and Order

1. Heard Mr. R. De, the learned counsel for the appellant. Also heard Mr.

P. Saikia, the learned counsel for the respondent.
2. This appeal under Section 28 of the Hindu Marriage Act, 1955 has
been filed by the appellant, namely, Sri Manoj Kumar Gogoi,
impugning the judgment and decree dated 03.06.2023, passed by
the Court of the learned District Judge, Sivasagar in Title Suit (M) No.
84/2022. The appellant is mainly aggrieved with the direction of the
Trial Court to pay Rs. 10,00,000/- (Rupees Ten Lakhs only) as

permanent alimony to the respondent.


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3. The facts relevant for consideration of the instant appeal, in brief, are

that the appellant and the respondent, were married on 21.04.1996,
as per Hindu rites and customs, at Sivasagar. Thereafter, they started
living together as husband and wife and two children were born out
of the said wedlock. At the time of filing of this appeal, the elder son
was of 21 years of age and the younger daughter was of 16 years of

age.
4. In the year 2021, the respondent filed a case against the appellant
under the provisions of Protection of Women from Domestic Violence
Act, 2005. The said case was registered as Misc. (DV) Case No.
12/2021. The said case was pending before the Court of the learned
st
Judicial Magistrate 1 Class cum Munsif No. 1, Sivasagar.
5. However, on 10.08.2022, the respondent prayed for withdrawal of the
said case on the ground that the respondent and appellant had
agreed to dissolve their marriage by filing an application for mutual
divorce under Section 13B of the Hindu Marriage Act, 1955.
6. Due to various reasons, the marital relationship between the
appellant and respondent became strained to such an extent that it
became difficult for them to continue as husband and wife in the said
marital relationship. Accordingly, they filed a joint petition under
Section 13B of the Hindu Marriage Act, 1955 for grant of a decree of
divorce on mutual consent before the Court of learned District Judge,
Sivasagar. The said case was registered as Title Suit (M) No.84/2022.
In the meanwhile, due to the fact of filing of mutual divorce petition
by both the parties and the prayer for withdrawal of the case filed by


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the respondent under the Protection of Women from Domestic
Violence Act, 2005, the Court of the learned Judicial Magistrate First
Class, Sivasagar by its order dated 09.11.2022 passed in Misc. (DV)
Case No. 12/2021 disposed of the aforesaid case on withdrawal.
7. Thereafter, by the impugned judgment and decree dated 03.06.2023,
passed in Title Suit (M) No. 84/2022, the Court of the learned District
Judge, Sivasagar dissolved the marriage between the present
appellate and respondent under Section 13B of the Hindu Marriage
Act, 1955 by a decree of divorce on mutual consent. However, while
dissolving the marriage between the parties, the Trial Court directed
the present appellant to pay a permanent alimony of Rs. 10,00,000/-
to the respondent and with the said direction, the present appellant
is agreed in this appeal and hence, he has filed this appeal.
8. Mr. R. De, the learned counsel for the appellant has submitted that in
the case filed by the respondent under the Provisions of the
Protection of Women from Domestic Violence Act, 2005, before the
Court of the learned Judicial Magistrate First Class, Sivasagar, which
was registered as Misc (DV) Case No. 12/2021, the respondent had
admitted that she was having an illicit relationship with one Vikas
Gogoi. The learned counsel for the appellant submits that since the
respondent was admittedly living in adultery with one Vikas Gogoi,
she is not entitled to get any permanent alimony in the divorce case.
9. He further submits that in the mutual divorce petition as well as in
the joint affidavit filed by the appellant and respondent before the
Trial Court in the divorce proceeding, it has been stated by both of


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them that none of the parties shall raise any demand for any interim
maintenance or permanent alimony from each other. He submits that
no prayer for grant of permanent alimony was made by the
respondent, rather it has been specifically averred in the mutual
divorce petition that no such claim for permanent alimony shall be
made by any of the parties. However, he submits that the Trial Court,
without considering the averments made in the divorce petition as
well as the deposition made by the respondent jointly with the
appellant in the evidence on affidavit which they submitted before
the Trial Court, directed the present appellant to pay the permanent
alimony of Rs. 10,00,000/- to the respondent without there being any
justification for the same. He, therefore, submits that the impugned
judgement and decree dated 03.06.2023 is liable to be set aside to
the extent of directing the present appellant to pay a permanent
alimony to the respondent. In support of his submission, the learned
counsel for the appellant has cited the following rulings:
i. Vinod Kumar Vs. Kaushalya reported in 1995 0 Supreme (Raj)
482
ii. Sanjivani Ramchandra Vs. Ramchandra Bhimrao Kondalkar
2020 1 Crimes (HC) 168.
reported in

10. On the other hand, Mr. P. Saikia, the learned counsel for the appellant
has submitted that the Trial Court has rightly granted the permanent
alimony to the respondent considering her status and inability to earn
sufficiently for her own and her children. He submits that the
provision of Section 25 of the Hindu Marriage Act, 1955 is enacted for


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social justice and especially to protect the spouse, who does not have
sufficient means of earning.
11. The learned counsel for the respondent has submitted that even if
the respondent has admitted having illicit affairs with another person,
the same may not be a ground to disentitle her from getting
permanent alimony under Section 25 of the Hindu Marriage Act, 1955
in view of the fact that adultery no longer is a crime after
decriminalization of the same by the judgment of the Apex Court in
the case of Joseph Shine Vs. Union of India reported in ( 2019) 03 SCC
39
.
12. He submits that this power to grant alimony can also be exercised
suo moto by the Trial Court and considering the facts and
circumstances of the present case, the Trial Court has rightly
exercised the power and granted just amount of alimony so that the
respondent may sustain even after dissolution of her marriage with
the appellant. In support of his submission, the learned counsel for
the respondent has cited the following rulings:
i. Savitaben Somabhai Bhatiya Vs. State of Gujarat and Others
reported in (2005) 03 SCC 636
Bhuwan Mohan Singh Vs. Meena (2015) 6 SC 353
ii. reported in
iii. Sukhdev Singh Vs. Sukhbir Kaur reported in 2025 3 Supreme
449

13. I have considered the submissions made by the learned counsel for
both sides and have gone through the materials available on record.


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I have also gone through the rulings cited by the learned counsel for
both sides in support of their respective submissions.
14. In the instant case the appellant is not aggrieved with the impugned
judgement and decree to the extent that it has dissolved his marriage
with the respondent on the basis of an application under Section 13B
of the Hindu Marriage Act, 1955 on mutual consent. The only
grievance of the appellant is regarding the fact of grant of permanent
alimony by the Trial Court in the impugned order.
15. For the sake of convenience, Section 25 of the Hindu Marriage Act,
1955 is quoted herein below :
“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 and other circumstances of the
case, it may seem to the court to be just, and


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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 re-married 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.”

16. On perusal the above provisions it appears that the Court may grant
permanent alimony on an application made to it for the said purpose
by either husband or wife. On a plain reading of Section 25 of the
Hindu Marriage Act, 1955, it implies that for grant of permanent
alimony an application is required from either of the parties. In the
instant case, no such application was made by the respondent. This
Court is of the considered opinion that in an appropriate case, even


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oral application for grant of permanent alimony may be allowed by
the Court. However, in the instant case, not to speak of an application
by either party, rather there was categorical averment in the mutual
divorce petition itself that none of the party would pay for either any
interim maintenance or any permanent alimony. The same plea was
reiterated by both the parties in their joint evidence on affidavit filed
before the Trial Court in the divorce proceeding.
17. As such, the grant permanent alimony by the Trial Court by merely
stating that “considering the entirety of facts and future of petitioner
No.2” does not seem to be justified and a correct approach has not
been taken by the Trial Court. Moreover, while granting permanent
alimony under Section 25 of the Hindu Marriage Act, 1955, the Trial
Court has also to consider the conduct of the parties and other
circumstances of the case.
18. In the instant case, apparently there is an admission by the
respondent of having an illicit affair with another person and the said
conduct, in the considered opinion of this Court in absence of any
application for grant of permanent alimony by the respondent does
not justify grant of suo moto permanent alimony by the Court in a
case of divorce by mutual consent where the parties had specifically
agreed not to pray for any permanent alimony.
19. Under such circumstances, the direction of the Trial Court in the
impugned order to the extent of directing the present appellant to
pay an amount of Rs. 10,00,000/- as permanent alimony to the
present respondent is liable to be set aside.


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20. In view of the discussions made and reasons stated in the foregoing

paragraph, the impugned order is set aside to the extent of same
directing the present appellant to pay an amount of Rs.10,00,000/-
as permanent alimony to the respondent. The decree of dissolution
of marriage between the parties, however, shall remain intact.
21. Send back the Trial Court record along with a copy of this judgment
to the Trial Court.
22. This appeal is, accordingly, allowed to the extent indicated herein
above.



JUDGE

Comparing Assistant
Amita
Sharma
Digitally signed
by Amita Sharma
Date: 2026.05.30
13:29:39 +05'30'


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