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Ranjit Rai Vs. Chitra Lekha - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 288 of 1972
Judge
Reported inILR1973Delhi260; 1973RLR579
ActsHindu Marriage Act, 1955 - Sections 24
AppellantRanjit Rai
RespondentChitra Lekha
Advocates: Yashpal and; T.N. Sethi, Advs
Cases ReferredIn Ronalds v. Ronalds
Excerpt:
family - jurisdiction - section 24 of hindu marriage act, 1955 - power of court to grant alimony during pendency of question of jurisdiction - whenever it appears to court that either spouse has no mean to meet necessary expenses of proceedings court may order other spouse to pay expenses on monthly basis having regard to income of spouse. - - ladi narang, under section 10 of the act an well as the application filed by her under section 24 of the act. similarly, the learned subordinate judge has referred to certain documents, like the identity card granted to the appellant by the authorities of hong kong for permission to settle permanently in hong kong. failure of the subordinate judge to do so was canvassed in that case......to be called 'the act') against the respondent-wife for judicial separation. the respondent filed an application under section 24 of the act claiming maintenance during the pendency of the proceedings and for expenses of litigation. the application of the respondent was contested by the petitioner on the basis of a judgment dated 21st april, 1972, passed by m. r. a. ansari, j. in f.a.o. no. 12 of 1972. that was a case in which the inherent. jurisdiction of courts in india was challenged. the appellant in that case was said to be not domiciled in the territory of india. on that submission it was contended in the said appeal that the courts in india had no jurisdiction to entertain the application under the act. in that context m. r. a. ansari, j. observed that the plea of domicile.....
Judgment:

Prithvi Raj, J.

(1) This petition was referred to a larger Bench by P. N. Khanna, J.

(2) The facts leading to the reference are that the petitioner-husband filed an application under Section 10 of the Hindu Marriage Act, 1955, (hereinafter to be called 'the Act') against the respondent-wife for judicial separation. The respondent filed an application under Section 24 of the Act claiming maintenance during the pendency of the proceedings and for expenses of litigation. The application of the respondent was contested by the petitioner on the basis of a judgment dated 21st April, 1972, passed by M. R. A. Ansari, J. in F.A.O. No. 12 of 1972. That was a case in which the inherent. jurisdiction of Courts in India was challenged. The appellant in that case was said to be not domiciled in the territory of India. On that submission it was contended in the said appeal that the courts in India had no jurisdiction to entertain the application under the Act. In that context M. R. A. Ansari, J. observed that the plea of domicile should be decided first.

(3) In the instant case, the Sub Judge trying the petition distinguished the judgment of M. R. A. Ansari, J. on the ground that there was no question of lack of inherent jurisdiction in the present case. P. N. Khanna, J. considering that the question involved was of considerable importance and likely of common occurrence, referred the matter to my Lord the Chief Justice for constituting a larger Bench for an authoritative pronouncement. This is how the matter has come before us.

(4) The petitioner in the present case filed a petition for judicial separation in the Court of Shri S. C. Jain, Sub Judge 1st Class, Delhi, under Section 10 of the Act seeking judicial separation. The jurisdiction of the Court at Delhi was sought to be made out on the allegation of the parties having last resided within the jurisdiction of Delhi Courts. The territorial jurisdiction of the Court was contested by the respondent by taking a preliminary objection to the effect that the Delhi Courts hau no jurisdiction to entertain and adjudicate upon the petition and that the petitioner was guilty of making false representation with respect to 'last residing of the parties' within the jurisdiction of the Delhi Court. It was further contended that a casual and a temporary visit to Delhi devoid of any intention to live or reside there could not clothe the Court with the necessary jurisdiction when the parties had their permanent residence at Azizullabpur, Panipat, District Karnal.

(5) The respondent also filed a petition under Section 24 of the Act prayiang that an order be made requiring the petitioner to pay the respondent expenses of the proceedings and such monthly sum during the proceedings as the Court may consider reasonable.

(6) The application filed by the respondent under Section 24 of the Act was contested by the petitioner amongst others on the ground that she having challenged the jurisdiction of the Court, it was imperative that the Court should first decide the question regarding the jurisdication before any orders regarding grant of pendente lite maintenance and expenses for the court proceedings were passed.

(7) In support of this contention the petitioner relied upon the observations made by M. R. A. Ansari J. in F.A.O. No. 12 of 1972 (Ravinder Pal Singh Narang v. Mrs. S. Ladi Narang) wherein it was observed that the point of jurisdiction must be decided first. The trial court after taking into consideration the observations in Ravinder Pal Singh's case (supra) came to the conclusion that the allegations made in that case were based on the lack of inherent jurisdiction of the Court in India while the plea of jurisdiction raised in the instant case was of territorial jurisdiction only. According to the trial court, in Ravinder Pal Singh's case one of the parties was alleged to be a domicile of Singapore to which place the Act did not apply which was not the position in the instant case. The trial Court, thereforee, came to the conclusion that granting of interim maintenance , not an act of exercise of inherent jurisdiction but the interim maintenance was granted as an interlocutory relief in the main petition. In the result, the trial court held that the application of the respondent under Section 24 of the Act could be heard and decided before deciding the question of territorial jurisdiction. The legality of the said finding had been challenged by the petitioner in the present civil revision.

(8) The learned counsel for the petitioner in asupport of his contention strongly relied upon the judgment of M. R. A. Ansari, J. in Ravinder Pal Singh's case. In that case, as already noted above, one of the questions raised was that Subordinate Judge had no jurisdiction to entertain the petition under section 10 of the Act or the application under section 24 of the Act for the grant of any relief against the petitioner as he was not domiciled in any of the territories to which the Act was extended as he had become a permanent resident of Republic of Singapore. The assertion that Ravinder Pal Singh had become a permanent resident of Republic of Singapore was traversed by Smt. Ladi Narang. The parties filed affidavits and documents in support of their respective contentions, on consideration of which the Subordinate Judge held that Ravinder Pal Singh continued to be domiciled in India. In the result the Subordinate Judge held that he had jurisdiction to entertain the petition filed by Smt. Ladi Narang, under section 10 of the Act an well as the application filed by her under section 24 of the Act.

(9) Being dissatisfied with that decision Ravinder Pal Singh challenged the same in appeal. When the appeal came up for hearing before M. R. A. Ansari, J., a contention was raised that the Subordinate Judge ought to have framed a preliminary issue on the question of jurisdiction and allowed an opportunity to both the parties to lead evidence on the said issue. It was contended that the Subordinate Judge had erred in not doing so. Upholding the contention, M. R.A. Ansari, J. observed as under:-

'THELearned Subordinate Judge has referred to certain letters alleged to have been written by the appellant to the respondent. Apart from the fact that these letters had to be proved as required under the Indian Evidence Act, the appellant was entitled to an opportunity to explain the contents of these letters. Similarly, the learned Subordinate Judge has referred to certain documents, like the identity card granted to the appellant by the authorities of Hong Kong for permission to settle permanently in Hong Kong. These documents have not been proved also as required under law and the appellant was not given an opportunity to admit or deny the genuineness of these documents or to explain the contents of these documents. The appellant has filed some other documents along with this appeal which, according to him, proved that he had applied for permanent residence in the Republic of Singapore. If the appellant had been given an opportunity by the learned Subordinate Judge to lead evidence in support of his contention that the courts in India had no jurisdiction over him, the appellant would have been able to prove all these documents. The order of the Learned Subordinate Judge which is impugned in the present appeal is, thereforee, set aside and the case is remanded to him with the direction that he should frame a preliminary issue on the question of jurisdiction and allow a reasonable opportunity to both the parties to adduce evidence on the said issue.'

(10) The question before M. R. A. Ansari, J. was not that whenever an objection to the jurisdiction of the court trying a petition under the Act, was taken, the Court was rendered ineffective in passing an apporpriate order on a petition under Section 24 of the Act by any party in the proceedings.

(11) The contention raised before M. R. A. Ansari, J. was that before deciding the question of jurisdiction the Subordinate Judge ought to have framed the preliminary issue and allowed an opportunity to both the parties to lead evidence on the said issue. Failure of the Subordinate Judge to do so was canvassed in that case. It was in that context that it was observed that the Subordinate Judge should have framed a preliminary issue on the question of jurisdiction and should have allowed an opportunity to both the parties to adduce evidence on the said issue; more so when the Subordinate Judge had referred to certain letters which were alleged to have been written by Ravinder Pal Singh to his wife which letters had not been proved as required under the Indian Evidence Act. Besides, it was held that Ravinder Pal Singh was entitled to an opportunity to explain the contents of those letters. It was in these circumstances that it was observed that a preliminary issue on the question of jurisdiction was required to be framed. The learned Judge, however, did not come to the conclusion that in any case where the jurisdiction of the trial Judge in a petition under the Act was challenged and where a party to the petition filed an application under Section 24 of the Act for the grant of expenses (if the litigation and pendente lite maintenance, it was incumbent upon the Court to first determine the question of jurisdiction and then proceed to decide the application of a party under Section 24. The decision in Ravinder Pal's case, thereforee, is of no assistance to the petitioner.

(12) It would be relevant here to reproduce Section 24 of the Act -

'24.Where in any proceeding under this Act, it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent it may seem to the court to be reasonable.'

(13) A bare perusal of Section 24 would reveal that whenever it appears tao the Court that either the wife or the husband had no independent income suflicient for her or his support and the necessary expenses of the proceedings, the court may on the application of wife or husband, order the respondent to pay to the petitioner the expenses of the proceedings and monthly during the proceedings such sum as, having regard to the petitioner's own income and the income of the respondent it may seem to the Court to be reasonable. The said section is couched in a language which leaves no manner of doubt that regardless of the fact that a party to the proceedings had raised a question of jurisdiction the Court may grant necessary expenses even to the party raising the question of jurisdiction to enable that party to meet the necessary expenses of the proceedings, in case the Court comes to the conclusion that such a party had no independent income to meet the expenses of the proceedings.

(14) If section 24 is not read in this light, it would provide handle to an unscrupulous party to institute proceedings under the Act in any Court whether that Court had jurisdiction or not and thus compel the respondent to contest the proceedings in a forum of his or her choice. On a respondent challenging the jurisdiction of the Court in such an event, it cannot be urged that since the respondent has challenged the jurisdiction, the respondent would not be entitled to pendente lite expenses of the proceedings before the question of jurisdiction of the Court is decided. If it were to be held otherwise, the respondent who has no independent income sufficient for meeting the necessary expenses of the proceedings, will be disabled to contest the petition which would virtually amount to enabling the petitioner to secure an order from the Court in his or her favor because the respondent for want of funds has been rendered helpless to contest the proceedings thereby frustrating the very purpose for which provisions in Section 24 have been made, namely, to provide succour by way of financial help to a needy spouse to contest the petition,

(15) We are fortified in our view by twoa English decisions of the Probate Division Court. In Smith v. Smith (1923) A.C. 128 the wife filed a petition for divorce against her husband who appeared under protest alleging that he was domiciled in Scotland and denied the jurisdiction of the English Court. The wife applied for an order for payment to her costs of the suit. The contention of the husband was that he could not be ordered to pay or give security for costs until the question of jurisdiction to entertain the suit was decided. Rejecting the contention the Court observed that the Court had jurisdiction to order security notwithstanding that the husband raised a question as to the jurisdiction of the Court to entertain the suit. In Ronalds v. Ronalds, Law. Rep. Iii P&D; 259 the wife filed a petition for dissolution of marriage. The husband entered appearance under protest alleging that the Court had no jurisdiction. On the wife's application for the grant of alimony it was observed that the Court had the power to allow alimony pending the determination of the question of jurisdiction. Alimony to the wife was allowed.

(16) In view of our discussion above, the revision petition fails and is dismissed with costs.


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