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Ambalal Kashiram Vs. Sharadagavri - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 281 of 1952
Judge
Reported in(1955)57BOMLR499
AppellantAmbalal Kashiram
RespondentSharadagavri
DispositionApplication dismissed
Excerpt:
bombay hindu divorce act (bom. xxii of 1947), sec. 8-judicial separation-decree to wife-alimony to wife-charge on husband's properly lying outside jurisdiction of court.;a court competent to hear a suit under the bombay hindu divorce act, 1947, has jurisdiction to place a charge on the husband's property for securing the amount awarded to the wife for her maintenance and support whether the property is situated within its jurisdiction or outside it. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of..........has been urged by mr. patwardhan in this appeal is that the learned judge had no jurisdiction to place a charge on the defendant's house at nasik. he has relied on section 16(d) of the civil procedure code, under which a suit for the determination of any right to or interest in immoveable property must be instituted in the court within the local limits of whose jurisdiction the property is situate. section 12 of the bombay hindu divorce act provides that save as otherwise provided in this act, the provisions of the code of civil procedure shall, so far as may be apply to all proceedings instituted under this act. the act contains specific provisions as to the courts in which suits under the act are to be instituted. consequently, in view of section 12 of the act, these provisions will.....
Judgment:

Chainani, J.

1. This is an appeal by the defendant, while the plaintiff has filed cross-objection. The plaintiff, who is the wife of the defendant, filed the present suit for obtaining judicial separation under Section 4 of the Bombay Hindu Divorce Act, 1947, on the ground that her husband, the defendant, had married again. The defendant resides at Nasik; but the suit was filed at Ahmedabad, where the plaintiff resides, with the permission of the Court. It was transferred to the Joint Civil Judge, Senior Division, for disposal. It was not disputed before him that the defendant had taken another wife, after he had married the plaintiff. The learned Judge, therefore, passed a decree for judicial separation. He directed the defendant to pay Ks. 25 per month as alimony to the plaintiff, and placed a charge for the payment of this amount on the house belonging to the defendant at Nasik.

2. The only point which has been urged by Mr. Patwardhan in this appeal is that the learned Judge had no jurisdiction to place a charge on the defendant's house at Nasik. He has relied on Section 16(d) of the Civil Procedure Code, under which a suit for the determination of any right to or interest in immoveable property must be instituted in the Court within the local limits of whose jurisdiction the property is situate. Section 12 of the Bombay Hindu Divorce Act provides that save as otherwise provided in this Act, the provisions of the Code of Civil Procedure shall, so far as may be apply to all proceedings instituted under this Act. The Act contains specific provisions as to the Courts in which suits under the Act are to be instituted. Consequently, in view of Section 12 of the Act, these provisions will prevail over those contained in the Civil Procedure Code. Section 5 of the Act specifies the Courts, in which suit as under the Act may be instituted. Sub-section (3) of this section states that such suit may be brought in the Court at the place where the plaintiff resides, if such Court, after recording its reasons, grants leave so to do. Sub-section (1) of Section 8, states that if the Court thinks fit, it may, at the time of passing any decree under the Act or subsequent thereto, on application made to it for the purpose, order that the husband shall, while the wife remains chaste and unmarried, secure to the wife, for her maintenance and support, if necessary, by a charge on the on the husband's property, such gross sum or such monthly or periodical-payment of money for a term not exceeding her life as, having regard to her own property, if any, her husband's property and the conduct of the parties, shall be deemed just. This section, therefore, empowers the Court, in which a suit has been instituted under the Act, to make an order for the payment of alimony and also to place a charge on the husband's property. It clearly contemplates that an application for a charge on the husband's property must be made to the Court which hears the suit under the Act and not to any other Court. It does not say that such application must be made to the Court in whose jurisdiction the property is situated. Section 5 enables a wife to obtain relief under the Act at the place where she resides. The object of this section would be partly frustrated and it would also cause considerable inconvenience and hardship to her, if after obtaining a decree from the Court at the place where she resides, she had to make an application for a charge on the husband's property to another Court, within whose jurisdiction that property is situated. Section 8 therefore empowers the Court hearing a suit under the Act to place a charge on the husband's property and it is immaterial for this purpose where the property is situated. A Court competent to hear a suit under the Act has therefore jurisdiction to place a charge on the husband's property for securing the amount awarded to the wife for her maintenance and support, whether the property is situated within its jurisdiction or outside it.

3. In this case, the suit was instituted by the plaintiff at Ahmedabad under Section 5(3) of the Act. Under Section 8, the Court at Ahmedabad had, therefore, jurisdiction to place a charge, for securing the payment of the amount of maintenance awarded to the plaintiff, on the defendant's property, even though it was situated at Nasik.

4. The appeal must consequently fail, and is dismissed with costs.

5. The rest of the judgment is not material to the report.


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