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Purshotam Kewalia Vs. Smt. Devki - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 66 of 1970
Judge
Reported inAIR1973Raj3; 1972()WLN654
ActsHindu Marriage Act, 1955 - Sections 10 and 25
AppellantPurshotam Kewalia
RespondentSmt. Devki
Advocates: C.D. Mundra, Adv.
DispositionAppeal partly allowed
Cases Referred and Akasam Chinna v. Parbati
Excerpt:
.....the grant of permanent maintenance to the wife under section 25 of the act white dismissing the husband's application for judicial separation. - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time..........directed against the judgment of the learned district judge, bikaner dated 25-2-1970 whereby the learned judge dis-missed the husband's application under section 10 of the hindu marriage act, 1955, hereinafter to be referred as the 'act', for judicial separation and while dismissing the application the learned judge awarded an amount of rs. 40/- per month as permanent maintenance to the wife under section 25 of the act.2. the appellant purshotam kewalia and smt. devki respondent were married according to hindu rites in july, 1937. at that tune they were both children, while the husband was 15, the wife was 10 years of age. according to the husband, the wife started living with the husband's parents at jaisalmer and at that time the husband's relatives came to know that the wife was.....
Judgment:

Kan Singh, J.

1. This is a husband's appeal directed against the judgment of the learned District Judge, Bikaner dated 25-2-1970 whereby the learned Judge dis-missed the husband's application under Section 10 of the Hindu Marriage Act, 1955, hereinafter to be referred as the 'Act', for judicial separation and while dismissing the application the learned Judge awarded an amount of Rs. 40/- per month as permanent maintenance to the wife under Section 25 of the Act.

2. The appellant Purshotam Kewalia and Smt. Devki respondent were married according to Hindu rites in July, 1937. At that tune they were both children, while the husband was 15, the wife was 10 years of age. According to the husband, the wife started living with the husband's parents at Jaisalmer and at that time the husband's relatives came to know that the wife was mentally deranged and was of violent nature. Then the wife had left her in-laws some two or three days thereafter without informing anyone and for no cause. The wife never returned to her husband and there was no cohabitation between the couple at any time. The husband proceeded to state that he continued to make efforts to fetch his wife, but the wife did not show her willingness to return. According to the husband, the wife did not even communicate with him for almost 22 years and he even did not know whether she was dead or alive. In August, 1967, however, the wife's brother took her to the husband's mother in the absence of the husband and the husband's mother was pressed to keep Devki with her, but the husband's mother expressed her inability to do so, as she was not knowing how Smt. Devki had lived for as many as 22 years since her separation from the husband. Then Smt. Devki started liv-ing in a rented house near the house of the husband's mother. It was in these circumstances that the husband applied for judicial separation against the wife. The main ground taken by him was desertion for a continuous period exceeding two years before the presentation of the application. The learned District Judge recorded evidence of the parties and came to the conclusion that the wife has not been shown to be in desertion, In the result, he dismissed the husband's application for judicial separation, but at the same time award-ed permanent maintenance to the wife at the rate of Rs. 40/- per month.

3. Learned counsel for the appel-lant has raised a twofold contention. In the first place, he argued that the husband has been successful in showing that the wife had been in desertion for a continuous period of more than two years preceding the filing of the application. In the second place, he submitted that the learned District Judge had no juris--diction to award permanent maintenance to the wife under Section 25 of the Act once he had dismissed the application for judicial separation.

4. In a recent case Devi Singh v. Smt. Sushila Devi, 1972 WLN 296 = (AIR 1972 Raj 303). I had occasion to discuss the concept of desertion within the meaning of Section 10 of the Act. After referring to a Supreme Court case I had noticed that two essential conditions must be there so far as the deserting spouse is concerned: (1) factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Likewise, two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. It was further pointed out that the inference regarding animus deserendi may be drawn from certain facts which may not in another case be capable of leading to the same inference, that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention both anterior and subsequent to the actual acts of separation. The offence of desertion commences when the fact of separation and the animus deserendi co-exist, but it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. The learned District Judge noticed that for proving desertion there was the sole testimony of the husband himself. Regarding this he observed that the husband hadnot stated the truth in several material particulars. Further the learned Judge referred to a number of letters written by the wife which the husband had himself produced and these led the learned District Judge to infer that the wife was making efforts to come bo the husband, but it was the husband who was not responding. In the circumstances the learned District Judge was not in error in holding that animus deserendi had not been established in the case though physical separation was admittedly there between the two spouses for more than two decades. However, mere physical separation without animus deserendi was not enough for holding that the wife was in desertion.

5. Now. I may turn to the further question whether the learned District Judge could have awarded permanent alimony to the wife while dismissing the husband's application for judicial separa-tion. I may read Section 25 omitting portions that are not material :

'Section 25. Permanent anmony and maintenance.--(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, while the applicant remains unmarried, 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, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immove-able property of the respondent.'

Now, according to the plain language of the section the court at the time of passing any decree or at any subsequent time on an application made to it for the purpose by either of the two spouses, as the case may be. order the payment of maintenance by the other spouse. The Act contemplates in all four kinds of decrees : (1) for restitution of conjugal rights vide Section 9,(2) for judicial separation vide Section 10,(3) for divorce vide Section 13. and (4) annulment of marriage which is void vide Sections 11 and 12. Under Section 2, Civil Procedure Code the term 'decree' means the formal expression of an ad-judication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with re-gard to all or any pf the matters in controversy in the suit and may be either preliminary or final and it shall be deem-ed to include the rejection of a plaint and the determination of any question within Section 47 or Section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) an order of dismissal for default. The Explanation lays down that a decree is preliminary when further proceedings have to be taken be-fore the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

Where a suit has been dismissed after trial, such dismissal is a decree within the meaning of Section 2, Civil Procedure Code, but dismissal of an ap-plication under the Act will not amount to a decree. Section 21 of the Act provides that subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be. by the Code of Civil Procedure, 1908. Section 23 lays down when in any proceeding under this Act the court will decree such relief. The provisions of the Act thus show that it is only when the relief claimed is decreed that the adjudication of the court will amount to the passing of any decree within the meaning of Section 25 of the Act.

The provisions of Section 25 of the Act are analogous to the provisions of Section 37 of the Indian Divorce Act.

6. In Devasahayam v. Devamony, ILR 46 Mad 133 = (AIR 1923 Mad 211) which was a case under the Indian Divorce Act, the learned Judges held that it was not competent to the court dismissing the husband's petition for dissolution of marriage to award maintan-ance to the wife under Section 15 or 37 of the Indian Divorce Act.

7. The same view has been expressed in cases under the Hindu Marriage Act, in Shantaram Gopalshet v. Hira Bai, AIR 1962 Bom 27; Kadia Karilal v. Lilavati, AIR 1961 Guj 202; Minarani v. Dasarath, AIR 1963 Cal 428 and Akasam Chinna v. Parbati, AIR 1967 Orissa 163, It is the Gujarat case which has been followed in the subsequent cases. In this case the learned District Judge had dismissed the application for restitution of conjugal rights made by the husband, but while dis-nissing the application had awarded naintenance under Section 25 of the Act to the wife. The learned Judges of he High Court observed :--

'The words 'at the time of passing my decree or at any time subsequent hereto' in Section 25 mean at the time of passing any decree of the kind re-erred to in the earlier provisions of the Act and not at that time of dismissingthe petition for any of the reliefs provided in those sections or any time subsequent thereto. The expression 'any decree' does not include an order of dismissal. The passing of an order of dismissal of a petition cannot be regarded as the passing of a decree within the meaning of this section.'

The other cases, as I have already observed, followed this case. I am in respectful agreement with the above observations and. therefore, hold that the learned District Judge had no jurisdiction to order the grant of parmanent maintenance to the wife under Section 25 of the Act while dismissing the husband's application for judicial separation.'

8. In the result, I allow this appeal in part. While the order of the learned District Judge for the dismissal of the husband's application for judicial separation shall stand, his order granting maintenance to the wife is set aside. Since no one has appeared to oppose this appeal. I leave the appellant to bear his own costs.


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