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Jagdish Vs. Bhanumati - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appnl. No 546 of 1980
Judge
Reported inAIR1983Bom297; 1983MhLJ754
ActsHindu Marriage Act, 1955 - Sections 19, 24, 25 and 26
AppellantJagdish
RespondentBhanumati
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateM.G. Bhangde, Adv.
Excerpt:
.....debated on whether the application filed by the wife for permanent alimony under section 25 of the hindu marriage act, 1955 was maintainable - a decree for dissolution of marriage at the instance of the husband had been passed by the court and subsequent application was filed not in the court passing the decree but in the court having jurisdiction under section 19 of the act - the court ruled that the application was not maintainable. - - 27 of 1975. summons of the said suit was duly served upon the non-applicant wife, but the failed to appear and contest the same. 9. the plain reading of section 19 clearly shows that it refers to every petition under this act. the wordings of the opening sentences of sections 24 and 26 clearly show that the application are to be presented in in any..........that on 20-6-78, the non-applicant wife presented an application under section 25 of the hindu marriage act for grant of permanent alimony. this application judge, senior division, nagpur and came to be registered as miscellaneous judicial case no. 149/78. she also preferred application under sections 24 and 26 of the hindu marriage act read with section 151 of the civil p. c. for interim maintenance for herself and her child.4. all the above facts are not disputed. in the miscellaneous judicial case, the applicant in the said proceedings, raised a preliminary objection about the jurisdiction of the civil judge, senior division, nagpur in the matter of entertaining the proceedings under section 25 of the hindu marriage act. the main ground in the said preliminary objection was.....
Judgment:
ORDER

1. The marriage between the applicant and non-applicant was solemnised at Nagpur according to Hindu rites in February 1960. After the marriage, the applicant and non-applicant were staying together at Jharsuguda in district Sambalpur of Orissa State. The non-applicant wife, after some time returned to Nagpur to reside with her father. She filed a petition for judicial separation in June, Senior Division, Nagpur. It was registered as H M. P. No. 96 of 1970. However, she withdrew the same on 21-9-1970 by filing a pursis to that effect.

2. Subsequently, the husband present applicant, presented a petition for dissolution of marriage in the year 1975, at the Court of the Subordinate Judge, Sambalpur in Orissa State. It was registered as Title Suit No. 27 of 1975. Summons of the said suit was duly served upon the non-applicant wife, but the failed to appear and contest the same. On 30-3-77, the Subordinate Judge at Sambalpur passed an exempted parte decree of divorce as prayed for by the husband.

3. The non-applicant wife did not take any step for setting aside the said exparte decree, nor did she prefer any appeal against the same. It is thereafter, that on 20-6-78, the non-applicant wife presented an application under Section 25 of the Hindu Marriage Act for grant of permanent alimony. This application Judge, Senior Division, Nagpur and came to be registered as Miscellaneous Judicial Case No. 149/78. She also preferred application under Sections 24 and 26 of the Hindu Marriage Act read with Section 151 of the Civil P. C. for interim maintenance for herself and her child.

4. All the above facts are not disputed. In the Miscellaneous Judicial Case, the applicant in the said proceedings, raised a preliminary objection about the jurisdiction of the Civil Judge, Senior Division, Nagpur in the matter of entertaining the proceedings under Section 25 of the Hindu Marriage Act. The main ground in the said preliminary objection was that the decree of divorce was passed by the Subordinate Judge at Sambalpur and it is that Court along which would have jurisdiction to entertain matters under Section 25 of the Hindu Marriage Act. The applicant husband also filed an application praying that the question of jurisdiction an preliminary issue should be decided by the Civil Judge, Senior Division, Nagpur before proceeding with the case.

5. However, the Trial Court fixed the case for hearing the wife's application for interim maintenance and at the same time heard the counsel of both the parties on the question of preliminary issue. By its reasoning in paragraph 5 of the order, below Exempted. 5, the Trial Court came to the conclusion that under Section 19 of the Hindu Marriage Act the Court at Nagpur also has jurisdiction to deal with the matters under Section 25 and it is not necessary that the proceedings under Section 25 ought necessarily to be filed at the Court where the decree in the matrimonial case was passed. He also proceeded to deal with the application for interim maintenance and directed the husband to pay an interim maintenance of Rupees 350 per month to the wife and her daughter and also to pay Rs. 300/- towards the costs of the proceedings. It is this order below Exempted. 5 passed by the Trial Court at Nagpur on 1-8-1980 which is impugned by the husband applicant by this revision.

6. Shri V. R. Manohar, Advocate appears for the applicant husband, while Shri M. G. Bhangde, Advocate represented the non-applicant.

7. The only question involved and which was urged on behalf of both the parties is regarding the forum where application under Section 25 of the Hindu Marriage Act is to be presented. Shri Manohar for the applicant contended that Section 19 of the Hindu Marriage Act is applicable for deciding the jurisdiction of the Court only in respect of petitions for substantial reliefs under the Hindu Marriage Act, but the same would not be applicable to proceedings under Section 25. He pointed out that Section 25 itself qualifies the forum where application under that section is to be presented. It was his case that since the petitioner husband had filed the Hindu Marriage petition at Sambalpur in Orissa State, where a decree of divorce was passed, the wife-non-applicant, could have initiated permanent alimony proceedings only at the Court of Sambalpur and not at Nagpur. Shri Bhande, on the other hand submitted that Section 19 of the Hindu Marriage Act, is a general provision governing all proceedings under the Act including the one for permanent alimony under Section 25.

8. Section 19 of the Hindu Marriage Act lays down that;

Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction:---

(i) the marriage was solemnized, or

(ii) the respondent, at the time of the presentation of petition, resides or

(iii) the parties to the marriage last resided together, or

(iv) .....................(not relevant for the purpose of this petition).

Accordingly, it may be argued that in facts and circumstances of the case, since the marriage was solemnised at Nagpur and since the parties to the marriage last resided together at Sambalpur, the matrimonial petition by one of the parties could be presented either at Nagpur or at Sambalpur. In the instant case, the wife had filed a petition for judicial separation at Nagpur in 1970, but had withdrawn the same. Later, the husband had presented the petition for dissolution of marriage under Section 25 of the Hindu Marriage Act are to be taken up for consideration and whether the permanent alimony proceedings are maintainable at Nagpur Court.

9. The plain reading of Section 19 clearly shows that it refers to every petition under this Act. The entire reading of the Hindu Marriage Act and the Scheme thereof shows that the reference to the word 'petition' has been made from time to time only in respect of petitions for restitution of conjugal rights under Section 9, or to petitions for judicial separation under Section 10, or petition for void or voidable marriages under Sections 11 and 12, and for dissolution of marriage by decree of divorce under Sections 13, 13A and 13B of the Act. Other sections are procedural sections and sections governing the conditions of Marriage.

10. Apart from this, it is only in Ss. 24, 25 and 26 of the Act which refer to the word 'application'. S. 24 refers to an application for interim maintenance pendente lite. S 25 refers to application for grant for permanent alimony and S. 26 refers to an application in respect of custody or maintenance or education of minor children during the pendency of a proceeding.

11. The substantive matrimonial reliefs under the scheme of the Hindu Marriage Act are governed by Sections 9 to 13B of the Act i.e. for restitution of conjugal rights, for judicial separation, for declaration of a void or voidable marriage, for divorce on one or the several contingencies or for divorce by mutual consent. All these substantive reliefs under the Hindu Marriage Act are to be secured by presenting a petition before the Court of original jurisdiction as defined under Section 19 of the Act. On the other hand, the applications which we have discussed above under Sections 24, 25 and 26, are to be presented during the pendency of the main substantive proceeding. The application for interim maintenance under Section 24 has to be presented during the pendency of the petition for substantial matrimonial relief. So also application for custody of the child or for maintenance or education, is to be presented when the substantive petition for matrimonial relief is pending. The wordings of the opening sentences of Sections 24 and 26 clearly show that the application are to be presented in in any proceeding under this Act. The wordings of Section 25 are however slightly different. Section 25 reads in so far as it is relevant of purposes of this revision, as follows;

25. (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 .......................'

12. Thus, the application under section 25 has to be presented to the Court exercising jurisdiction under this Act between the parties in respect of a substantial relief under the Act. The phraseology further shows that it is that Court which can pass an order either at the time of passing any decree for substantial relief or at any time subsequent thereto. It is further clear when the section says that such application has to be made to it i.e., referring to the Court exercising jurisdiction under this Act at the time of passing any decree or at any time subsequent thereto.

13. Even viewing the case from another angle, it would be seen that the proceedings under Section 24, 25 and 26 of the Hindu Marriage Act are consequential relief to the main or substantial relief arising out of the marriage petition. As far as Sections 24 and 26 are concerned, there can be no dispute that they are to be field during the pendency of the main proceedings for substantial relief. In so far as S. 25 is concerned permanent alimony is a consequential relief to the substantial relief of the determination of matrimonial rights between the parties. The phrase clearly shows that the Court exercising jurisdiction at the time of passing of the decree or subsequent thereto on an application presented before it may pass an order granting relief of permanent alimony and maintenance. The object of the framers appears to be that the Court having seisin of the matter relating to substantial relief is also given the jurisdiction to deal with the consequential relief of permanent alimony.

14. In a Division Bench ruling of the Cuttack High Court, reported in Ramachandra Behera v. Smt. Snehalata Dei : AIR1977Ori96 , it has been held that an application for permanent alimony and maintenance could be filed only in the Court which passed the decree of divorce. However, as seen in para 5 of the said judgment the Court was not required to consider the said question, in as much as counsel for both the husband and the wife did not dispute that the application contemplated under S. 25(1) of the Act lies to the Court which passed the decree.

15. A contrary view has bee taken by the learned single Judge of Punjab and Haryana High Court in the matter of Smt. Darshan Kaur v. Malook Singh . According to the learned Judge, Section 19 of the Hindu Marriage Act is applicable to all proceedings including the application under Section 25 of the Act as well. He disagreed with the argument that the phraseology of S. 25, and in particular the words 'on application made to it for the purpose' referred to the court which passed the decree. According to him, this interpretation would lead to anomalous results. I respectfully disagree with the said view, inasmuch as firstly the word 'petition' in the Hindu Marriage Act is referred only to those which are presented to the Court for substantial relations interest while the word 'application' is used only for consequential reliefs of interim maintenance, permanent maintenance or for custody and maintenance of children. Section 19 of the Act also refers to 'petition' and. in my opinion, obviously to the petition of substantive reliefs covered by Ss. 9 to 13-B of the Act. Further Ss. 24 and 26 from the very nature of the reliefs to be granted refer to the pending proceedings for the main relief and as such have to be filed and presented where the petition for substantive relief is pending. So also S. 25, which, in my opinion, is a consequential relief to be granted at the time of passing of any decree of substantive relief or at any time subsequent thereto, the application thereunder will have to be filed before the Court exercising the jurisdiction at the time of passing of any decree or subsequent thereto. The phraseology used in S. 25 in the opening clause cannot be lightly bruised aside because it pointedly refers to the Court to which the application for permanent alimony has to be presented. At the cost of repetition, I would again reproduce the opening sentence of S. 25(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 ...............'

Even the plain reading of the opening sentence of S. 25 shows that the section itself fixes the forum for the relief of permanent alimony and maintenance to be the same Court which is exercising jurisdiction between the husband and wife at the time of passing of a decree for substantive matrimonial relief or at any time subsequent thereto on an application made to it for the purpose.

16. I am unable to agree with the contention of the non-applicant-wife that the word 'any court exercising jurisdiction under this Act' could be referable to the one defined in S. 19 of the Act. In fact, I feel that the word 'any court' is used advisedly to include any court within the definition of S. 13B. However, once a petition for substantive relief is filed in one of the Courts who have jurisdiction to deal with the substantive relief as defined under S. 19, then the consequential relief under Sections 24, 25 and 26 have to be sought for only form the courts exercising jurisdiction at the time of passing a decree or subsequent thereto.

17. It also cannot be lost sight of that Hindu Marriage Act is a special Legislation codifying the ancient Hindu Law. The object of codification of the particular branch of law is that on any matter specifically dealt with by it, the should be sought for in the codifying enactment itself. Thus, apart from other enactment, such as Hindu Adoption and Maintenance Act 1956, where S. 18 also gives a right to a Hindu wife to claim maintenance, the proceedings under Hindu Marriage Act 1955 will have to be strictly dealt with under that Act and not under any other law. Since in my view, S. 25 of the Hindu Marriage Act itself prescribes the forum, before which the consequential relief of permanent alimony is to be secured, no reference to S. 19 of the Hindu Marriage Act is necessary, particularly when it only refers to petition under the Act viz, those governed by Ss. 9 to 13B.

18. In the facts and circumstances of the case, it is apparent that for filing of petition for substantive relief, the Court at Nagpur as well as at Sambalpur ahd jurisdiction to deal with the matter. However, the decree for dissolution of marriage has been passed by the Court at Sambalpur and it is that court which at the time of passing a decree or subsequent thereto could also grant the consequential relief of permanent alimony. under S. 25 by an application made to it. The Court at Nagpur even though it has original civil jurisdiction to deal with the substantial matrimonial relief, cannot be approached for the consequential relief of permanent alimony under S. 25 of the Act. The Court at Sambalpur alone can deal with that subject in the facts and circumstances of the case.

19. In the result, therefore, the Revision Application succeeds and is allowed. The impugned order dated 1-8-1980 below Ex. 5 passed by the Trial Court in M. J. C. No. 149/78 is quashed and set aside. It is directed that M. J. C. preferred by the wife Bhanumati under Sections 24, 25 and 26 of the Act is not maintainable at the Court at Nagpur. The same is dismissed for want of jurisdiction. The interim orders passed by the Trial Court are also quashed and set aside. In the circumstances of the case, there shall be no order to costs.

20. Petition allowed.


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