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Darshan Kaur Vs. Malook Singh - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 11-M /1981
Judge
Reported inAIR1983P& H28
ActsHindu Marriage Act, 1955 - Sections 19, 25, 26 and 27
AppellantDarshan Kaur
RespondentMalook Singh
Cases Referred and A. R. Munuswamy v. Hamsa Rani
Excerpt:
.....against malook singh in the court of district judge, jullundur, in which it was recited that the decree of divorce was passed by the additional district judge, allahabad and the appellant's appeal failed before the allahabad high court. (2) if the court is satisfied that there is charge 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 remarried 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..........was pleaded that the respondent voluntarily resided and worked for gain in village gari baksha, district jullundur. claim for rs. 500/- per month for permanent alimony was made. the petition was contested by malook singh, who took up a preliminary objection that since the decree of divorce was passed by the additional district judge, allahabad, only that court had the jurisdiction to entertain the petition. he also denied if he owned any land or had gold ornaments in his possession. he also denied that he was editor of lok lahar and was getting any salary from that paper. he pleaded that he was getting rs. 60/- per month as pension from air force. in reply to para 5 he admitted that he resided in village garhi baksha, district jullundur. the court below struck the following.....
Judgment:

1. Malook Singh obtained an ex parte decree of divorce against his wife Darshan Kaur from the Court of Additional District Judge, Allahabad on 15-11-1976. When she came to know of the decree, she filed an appeal in the Allahabad High Court, which was barred by time by 366 days and was consequently dismissed as such on 1-2-1980. On 19-4-1980, Darshan Kaur filed a petition under S. 25 of the Hindu Marriage Act, 1955(hereinafter referred to as the Act) for the grant of permanent alimony against Malook Singh in the Court of District Judge, Jullundur, in which it was recited that the decree of divorce was passed by the Additional District Judge, Allahabad and the appellant's appeal failed before the Allahabad High Court. She pleaded that the husband had six Killas of land having value at the rate of RS. 35,000/- per Killa out of which on one Killa there was an orchard and tubewell was installed. The respondent had 20 Tolas of gold ornaments and was employed as Editor, Paper Lok Lahar and was drawing RS. 800/- per month besides getting military pension amounting to RS. 350/- was pleaded that the respondent voluntarily resided and worked for gain in village Gari Baksha, District Jullundur. Claim for RS. 500/- per month for permanent alimony was made. The petition was contested by Malook Singh, who took up a preliminary objection that since the decree of divorce was passed by the Additional District Judge, Allahabad, only that Court had the jurisdiction to entertain the petition. He also denied if he owned any land or had gold ornaments in his possession. He also denied that he was Editor of Lok Lahar and was getting any salary from that paper. He pleaded that he was getting RS. 60/- per month as pension from Air Force. In reply to para 5 he admitted that he resided in village Garhi Baksha, District Jullundur. The Court below struck the following preliminary issue.

'Whether the Court has jurisdiction to entertain this petition?'

The Court below relied on Seeta Ram v. Smt. Phooli, AIR 1972 Raj 313 and A. R. Munuswamy v. Hamsa Rani, AIR 1975 Mad 15, in coming to the conclusion that it is the Court which granted the decree of divorce, which alone had the jurisdiction to entertain the petition under Section 25 of the Act and thus concluded that the District Court at Jullundur had no jurisdiction to entertain the petition under 25 of the Act. Consequently, her petition was dismissed vide order dated 18-10-1980. This is Darshan Kaur's appeal to this Court.

2. After hearing the learned counsel for the parties, I am of the view that this appeal deserves to succeed. The Court below only considered Section 25 of the Act in deciding the preliminary issue and did not give due importance to S. 19 of the Act. Section 19 and 25 of the Act are as under :--

'19. Court to which petition shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-

(i) the marriage was solemnised, or

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

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

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

'25. 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 there to, 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 and the conduct of the parties and other circumstances of the case it may seem to the Court to be just, and 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 charge 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 remarried 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.'

3. A reading of Section 19 clearly shows that every petition under the Act (which will include a petition under Section 25 of the Act as well) has to be presented to the District Court within the local limits of whose ordinary original civil jurisdiction-

(i) the marriage was solemnised, or

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

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

(iv)(not concerned in this case).

It is not disputed that the marriage of the parties was solemnised within the jurisdiction of District Court, Jullundur, both the parties are residing within the jurisdiction of District of Court, Jullundur, although it is not clear as to where they last resided together. Therefore, it is clear that even for a petition under Section 25 of the Act, the Jullundur Court will have jurisdiction in this matter. Adverting to the phraseology of S. 25, stress is being laid on the words 'on application made to it for the purpose.' From these words it is sought to be inferred that 'it' is the Court, which passed the decree, and that court alone is this interpretation were to be placed on these words, it will lead to anomalous results as would be clear from the following example. Suppose, a divorce petition is dismissed by the first Court and the dismissal is confirmed by the High Court and the matter goes to the Supreme Court and the Supreme Court grants a decree of divorce. The interpretation sought to be placed on S. 25 of the Act and on the word 'it', would mean that a petition for grant of permanent alimony under Section 25 of the Act will have to be filed before the Supreme Court. Similarly, if the divorce petition was granted by this Court, the application for the grant of permanent alimony will lie to this Court. This is not the scope of either S. 25 or conveyed by S. 19 of the Act. Moreover, the opening part of S. 25 shows that the proceedings may be taken before 'any' Court exercising jurisdiction under this Act and the jurisdiction under this Act is exercised in view of Section 19 of the Act on matters arising under the Act. Therefore, the reasonable interpretation to be placed, would be that S. 25 or for the matter any other section, should be read subject to S. 19 so far as the jurisdiction of the Court is concerned unless there is a specific provision to the contrary in any particular section. Therefore, on a plain reading of S. 19 and reading it harmoniously with S. 25 of the Act, the only conclusion to be drawn would be that even if a petition for divorce, or any other decree, is granted by one of the Courts having jurisdiction under S. 19 of the Act, it may give cause to the opposite party to move for the grant of permanent alimony or any other relief under S. 26 or 27 of the Act, again the jurisdiction will be governed by S. 19 of the Act and not merely by the passing of a decree by a particular Court.

4. As regards the two cases relied upon by the Court below, on a careful perusal of the same, it shows that they are clearly distinguishable and have not even remotely decide d the point which is at issue before me. On the other hand a reading of the same shows that the Court which granted the decree, has also jurisdiction to entertain the petition under S. 25 or 27 of the Act, which means it gives inclusive jurisdiction and the jurisdiction of any other Court, which may have jurisdiction in view of S. 19 of the Act, has not been excluded by any of these two decisions. Therefore, the Court below was in error to place reliance on the said decisions.

5. Falling back to the peculiar facts of this case, it is admitted that both the parties are living within the jurisdiction of District Court, Jullundur. When the divorce petition was filed, the husband was temporarily posted at Allahabad being an employee of the Air Force. during which period, he filed a petition for divorce at that place and obtained ex parte decree. The passing of ex parte decree further shows that probably the wife was not properly got served in the village in district Jullundur and when she came to know of the decree, she moved to Allahabad High Court and her appeal was dismissed as barred by time. At least, on these facts it will cause manifest injustice not only to the wife but also to the husband because both the parties would be driven to the jurisdiction of Allahabad Court. If with difficulty, the wife is able to go to Allahabad Court to the file the petition under S. 25 of the Act, it will drag the husband also to that place and only at that time, the husband will realise that he committed a mistake in opposing the petition filed at Jullundur.

6. For the reasons recorded above, this appeal is allowed; the order of the Court below dated 18-10-1980 is set aside and it is held that the Jullundur Court has jurisdiction to decide the petition filed under S. 25 or 27 of the Act. For deciding the remaining matter on merits in accordance with law, the parties. through their counsel. Are directed to appear before the Additional District Judge, Jullundur, on 20-9-1982. The appellant will have her costs.

7. Appeal allowed.


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