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Subhash Chandra JaIn Vs. Smt. Vidyut Jain - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 739 of 1976
Judge
Reported inAIR1978All234
ActsCode of Civil Procedure (CPC) , 1908 - Sections 19 and 20
AppellantSubhash Chandra Jain
RespondentSmt. Vidyut Jain
Appellant AdvocateL.P. Singh, Adv.
Respondent AdvocateS.C. Varma, Adv.
DispositionRevision dismissed
Excerpt:
.....of wife's stridhan cause of action arose where they were received as gifts. - - , but the meaning given to it by lord esher in the well-known case in read v. suraj narain air1955all387 (supra). 10. the contention that acquisition of property does not form any part of the cause of action in a suit instituted for its return or for compensation in the event of the defendant's failure to return the same is only partially correct. and such a gift having by them been presented through kindness, that the woman possessing it may live well, is declared by law to be her absolute property.orderyashoda nandan, j.1. this is a revision arising out of a suit instituted by the plaintiff-opposite party against the applicant for recovery of amount of rs. 8,570/- as arrears of maintenance allowance for the period commencing 1st of august, 1969 and ending 30th september, 1971, for future maintenance allowance at the rate of rs. 400/- per month for return of ornaments of the plaintiff-opposite party alleged to have been illegally detained by the defendant-applicant or in the alternative for an amount of rs. 11,600/- as compensation therefor and for permanent injunction to restrain the applicant from entering into matrimony with one km. ushi or any other girl or woman.2. the suit was instituted by the opposite party on the allegations that she was married to the applicant according.....
Judgment:
ORDER

Yashoda Nandan, J.

1. This is a revision arising out of a suit instituted by the plaintiff-opposite party against the applicant for recovery of amount of Rs. 8,570/- as arrears of maintenance allowance for the period commencing 1st of August, 1969 and ending 30th September, 1971, for future maintenance allowance at the rate of Rs. 400/- per month for return of ornaments of the plaintiff-opposite party alleged to have been illegally detained by the defendant-applicant or in the alternative for an amount of Rs. 11,600/- as compensation therefor and for permanent injunction to restrain the applicant from entering into matrimony with one Km. Ushi or any other girl or woman.

2. The suit was instituted by the opposite party on the allegations that she was married to the applicant according to Jain Dharmashastra on the 8th of June, 1969 at her parents' residence at Etah. It was alleged that while the applicant was employed and lived at Delhi his parents resided at Calcutta. According to the opposite party after her marriage, she went to Agra with the applicant where he resided at the relevant time and stayed there for few days and thereafter returned to Etah. After stay for about 3 days at Etah, it is alleged, that the opposite party went to Calcutta because the applicant and the members of his family were leaving for Calcutta after the marriage. According to the plaint case, the opposite party after stay for about one month at Calcutta at the residence of the parents of the applicant returned back to Etah and has since then been residing there. It is alleged that in spite of efforts being made by the parents of the opposite party, the applicant did not take her back with him and did not even support her in any fashion. The plaintiff claimed that the conduct of the applicant amounted to desertion of the opposite party and consequently she was entitled to a decree for maintenance allowance. The plaint discloses that when the efforts of the opposite party to persuade the applicant to take her back as his wedded wife and keep her with him proved futile, she herself went to Delhi in June, 1971 but the applicant refused to keep her with him and informed her that he was intending to marry one Km. Ushi. It is asserted in the plaint that in view of the provisions of the Hindu Marriage Act, 1955, the opposite party was entitled to the benefits of a monogamous marriage and the applicant could not marry a second time as long as the opposite party continued to remain the wife of the applicant. According to the plaintiff-opposite party, when she returned back from Calcutta to Etah, the applicant had detained with him her ornaments and valuable clothes which formed her Stridhana property having been gifted to her by the plaintiff's father and by the applicant at the time of the marriage ceremony.

3. A written statement was filed by the applicant and the correctness of the material allegations contained in the plaint were disputed. As a result of the pleadings of the parties, a number of issues were framed by the trial court, one of them being as to whether the court at Etah had jurisdiction to entertain the suit as framed. The issue with regard to the jurisdiction was tried as a preliminary issue and the court below held that it had jurisdiction to entertain the suit. Aggrieved by the decision on the preliminary issue, the applicant has filed this revision under Section 115 of the Civil P. C.

4. Learned counsel appearing on behalf of the applicant has rightly and frankly conceded that as far as the reliefs for the grant of a decree of maintenance allowance and for a permanent injunction to restrain the applicant from entering into a second marriage during the subsistence of the marriage between the applicant and the opposite party are concerned, the suit was maintainable at Etah. The view taken by the court below that the claim for maintenance is maintainable at Etah where the marriage between the applicant and the opposite party was performed is fully supported by a decision of this Court in Smt. Chandrawati v. Suraj Narain : AIR1955All387 . The material facts giving rise to the above-mentioned decision were that the appellant before this Court Smt. Chandrawati and respondent Lala Suraj Narain were married at Moradabad. After the appellant had lived with her husband for ten years, he turned her out from his home. By the time this happened, the husband had shifted to Delhi and had started residing there. Smt. Chandrawati ultimately filed a suit at Moradabad claiming arrears of maintenance at the rate of Rs. 400/- per mensem and for return of certain ornaments valued at Rs. 10,000/- and for future maintenance at the rate of Rs. 400/-per mensem. In the written statement filed by the defendant-respondent, a plea was taken that as he was living at Delhi and the plaintiff had alleged that he had turned her out a second time when she went to Delhi to live with him, the cause of action must be deemed to have arisen in Delhi and the Moradabad court had no jurisdiction to entertain and decide the suit, The trial court held in favour of the defendant and directed the return of the plaint for presentation to the proper court. A First Appeal from Order was consequently preferred by the plaintiff in this Court. The Bench consisting of Malik, C. J. and V. Bhargava, J. which decided the appeal, observed (at p. 388):

'At the time of the marriage the husband undertakes the liability to maintain the wife and this liability continues so long as the wife does not disqualify herself from her right to maintenance either by reason of her misconduct or by reason of her refusing to perform her marital duties. It cannot be said that the wife is entitled to be maintained only when she is living with her husband at his place of residence even if through no fault of hers she has to live separately.

In the case, before us, the liability of the husband to maintain the wife being there, it having arisen by reason of the marriage having been performed at Moradabad, within the jurisdiction of the learned Civil Judge of Moradabad, a part of the cause of action must be deemed to have arisen there. Under Section 20 Civil P. C., therefore, the plaintiff could bring her suit within the jurisdiction of the Moradabad Court.'

5. Though there is no discussion on the subject, this Court in the above decision held that a suit for recovery of maintenance allowance and for return of ornaments at the instance of the wife was maintainable at the place where the marriage between the parties was performed. The basis of the judgment, as would appear from the passage quoted above, was that part of the cause of action in such a suit is the performance of marriage between the parties. A similar view has been taken by the Madras High Court in K. Vajravelu Mudaliar v. Rajalakshmi Ammal : AIR1954Mad358 .

6. In view of the concession made by learned counsel appearing on behalf of the applicant that a suit claiming maintenance allowance and a permanent injunction restraining the husband from entering into a second marriage during the subsistence of the marriage with the plaintiff is maintainable at the place where the parties entered into marriage, it is not necessary to pursue the subject any further.

7. Learned counsel appearing on behalf of the applicant, however, strenuously contended that since according to the plaintiff's own case, she had been deprived of her ornaments at Calcutta, the cause of action for a claim for return of those ornaments arose at Calcutta and not at Etah where the suit has been instituted. It was submitted that while the suit for other reliefs might be maintainable in the Court of the Civil Judge at Etah, he has no jurisdiction to entertain a claim for return of the ornaments alleged to have been detained by the husband or for award of compensation for the price thereof. It was contended that acquisition of the property alleged to have been illegally detained does not form part of the cause of action for a suit for its return. Learned counsel appearing on behalf of the applicant placed reliance on Section 19 of the Civil P. C. for the purpose of contending that the suit for recovery of the ornaments or for compensation of the price thereof could be instituted only either at Calcutta or at Delhi where the applicant was residing at the time when the suit was instituted. Section 19 of the Civil P. C. which has been relied upon, in my opinion, is not attracted to the facts of this case at all. Section 19 runs as follows:--

'Where a suit for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court the suit may be instituted at the option of the plaintiff in either of the said courts.'

Section 19 of the Civil P. C., in my opinion applies to a suit where wrong to movable property has been done in the sense that it has in some way been changed so that its value diminished and the plaintiff claims compensation for that damage. This provision, in my judgment, it has no application to the case where movable property has wrongly been taken away and detained by the defendant. A suit of the nature with which we are concerned will be governed by Section 20(c) which provides:--

'Subject to the limitation aforesaid, every suit shall be instituted in a court within, the local limits of whose jurisdiction.

(a) ..........................

(b) ..........................

(c) the cause of action wholly or in part, arises.'

The expression 'cause of action' has not been defined in the Civil P. C., but the meaning given to it by Lord Esher in the well-known case in Read v. Brown, (1888) 22 QBD 128, has been generally adopted by Indian Courts. The passage in Lord Esher's judgment where the expression 'cause of action' has been defined runs as follows:--

'It has been defined in (1873) 8 CP 107 to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.'

In other words it means.

'All the congeries of facts which it is necessary for the plaintiff to establish before he can ask the Court to grant the relief which he claims in the suit (vide Costello J., in : AIR1935Cal160 Samerendra Nath Mitra v. Pyareecharan Laha).'

8. In the words of Lord Watson the cause of action has no relation to the defence which is set up by the defendant.

'It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'

9. There are numerous cases decided by different High Courts in India, where substantially the same definition has been adopted. Our High Court has expressed the same view in Smt. Chandrawati v. L. Suraj Narain : AIR1955All387 (supra).

10. The contention that acquisition of property does not form any part of the cause of action in a suit instituted for its return or for compensation in the event of the defendant's failure to return the same is only partially correct. A wife cannot file a suit for return of her property against her husband irrespective of its nature. Stridhana property, however, falls in a separate class and has special features which are not available to properties other than stridhana which a wife may possess or own. In the instant case, it may be emphasised that in the plaint itself it was disclosed that the ornaments of which the return was sought were gifted to the plaintiff-opposite party at the time of her marriage by the husband and by her own father. According to all schools of Hindu law property gifted to a lady at the time of her marriage by her parents and by her husband constitute stridhana property. The law relating to the rights of a woman for her stridhana has been set out by Katyayana as follows:--

'What a woman, either after marriage or before it, either in the mansion of her husband or of her father, receives from her lord or her parents is called saudayika, that is, gift from affectionate kindred; and such a gift having by them been presented through kindness, that the woman possessing it may live well, is declared by law to be her absolute property. The absolute exclusive dominion of woman over such a gift is perpetually celebrated; and they have power to sell or give it away as they please, even though it consists of lands and houses. Neither the husband, nor the son, nor the father, nor the brother, has power to use it to alienate the legal property of a woman. (Colebrooke's Digest, Book V, p. 475).'

11. The right of the opposite party to obtain a decree for return of the ornaments arose merely because they constituted her stridhan over which even her husband had no domain and had no right to retain against her will. If the property had not been a stridhan, the suit for its return itself could not have been maintainable. It was consequently necessary for the plaintiff-opposite party to allege in her plaint and to prove that the ornaments of which she seeks return, constituted her stridhana. Thus the fact that the ornaments were received as gifts by the plaintiff opposite party at the time of her wedding with the applicant constituted part of the cause of action for the claim for a decree for return of the ornaments or for compensation as price thereof. Since she had acquired stridhana during her marriage at Etah, part of the cause of action did arise at Etah. Under the circumstances, in my judgment, the claim for return of the ornaments to which the plaintiff-opposite party claims to be her stridhana, was rightly entertained by the learned Civil Judge at Etah.

12. I can see (no) legal infirmity in the decision of the learned Civil Judge sought to be revised and consequently dismiss this revision. Parties shall bear their own costs. Interim order dated 15th April, 1976 is hereby vacated. The suit was instituted in the year 1971 and has not gone beyond the stage of the decision of a single issue on jurisdiction. Office will take steps to send down the record of the case at a very early date and I expect that the trial court will decide the suit as expeditiously as far as possible.


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