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K. Vajravelu Mudaliar Vs. Rajalakshmi Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1346 of 1951
Judge
Reported inAIR1954Mad358; (1953)2MLJ619
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20; Hindu Law
AppellantK. Vajravelu Mudaliar
RespondentRajalakshmi Ammal
Appellant AdvocateK. Umamaheswaram and ;Y. Venkatarami Reddi, Advs.
Respondent AdvocateV.S. Rangachary, Adv.
DispositionRevision dismissed
Cases ReferredGhulam Hussain v. Mt. Hakambibi
Excerpt:
family - maintenance - section 20 of code of civil procedure, 1908 and hindu law - in suit for maintenance primary allegation required to be made in plaint is that parties were married - marriage required to be proved before other facts that may be alleged in plaint - fact of marriage would form part of cause of action - place of marriage where part of cause of action arises would be place where suit could be instituted - not all facts that require to be established could be said to form part of cause of action but only essential and salient facts - marriage being primary fact to be alleged and established before wife entitled to obtain judgment for maintenance. - - patch all',32 cal 146 (i), a suit for dower was instituted in the court of the subordinate judge of saran alleging that..........the parties were married. maintenance is asked on the basis of the relationship of husband and wife. marriage is, therefore, a fact which requires to be proved before the other facts that may be alleged in the plaint as to how and under what circumstances and in what event the wife had become entitled to be separately maintained. it is, therefore, the primary fact that has to be alleged and proved. the fact of marriage would, therefore, form part of the cause of action and the place of marriage where part of the cause of action arises would be a place where the suit could be instituted. it is again not all the facts that require to be established that could be said to form part of the cause of action, but only the essential and salient facts. marriage, as already observed, is the.....
Judgment:

Krishnaswami Nayudu, J.

1. The question that arises for determination in this revision petition is whether the place of marriage confers jurisdiction for a suit for maintenance filed by a Hindu wife against her husband.

2. The petitioner is the husband and the suit was instituted by his wife the respondent, in the District Munsif's Court of Tiruchirapalli, for recovery of maintenance at the rate of Rs. 50 per mensem, for arrears and for other reliefs. The petitioner was residing in Chittoor, a place outside the Jurisdiction of the Additional District Munsif's court of Tiruchirapalli and on his contention that the District Munsif's court of Tiruchirapalli had no jurisdiction to try the suit, the issue as to jurisdiction was tried as a preliminary issue. The District Munsif of Tiruchirapalli upheld the objection holding that the cause of action for a suit for maintenance was the breach of the duty on the part of the husband to maintain his wife, which breach of duty occurred at Chittoor and repelled the argument on behalf of the respondent that marriage being part of the cause of action for a suit for maintenance, the suit could be instituted in the place where the parties were married. The decision of the District Munsif of Tiruchirapalli was reversed by the District Judge of Tiruchirapalli in appeal, who held that marriage also formed part of the cause of action and the place where the marriage was celebrated being Tiruchirapalli, the suit for maintenance could be instituted in the District Munsif's court of that place.

3. It is urged on behalf of the petitioner that for a claim for maintenance, marriage does not form part of the cause of action, though the general relationship which imposes an obligation on the part of the husband to pay maintenance arises out of the marriage; but the real cause of action for a suit for maintenance is the refusal to maintain, which refusal in the present case had occurred at Chittoor, and that the court in Chittoor alone, where not only the cause of action arose but the defendant resided, had the jurisdiction to entertain the suit.

4. Reliance was placed on the decision in --'Venugopal Naidu v. Lakshmi Animal' : (1936)70MLJ288 . In that case a Hindu, residing within the jurisdiction of the Vellore District Munsif's court, sued his wife in that court for restitution of conjugal rights. The marriage of the parties took place at Bangalore and on an objection raised as to the jurisdiction of the Vellore District Munsif's court, it was held that the cause of action for the suit arose within the jurisdiction of the Vellore District Munsif's Court and that court had jurisdiction to try the suit.. Beasley C. J, quoted with approval the observation of Sargent C. J. in -- 'Lalitagar Keshargar v. Bai Suraj', 18 Bom 316 (B), viz., that,

'the cause of action arises from the duty of the wife to reside with her husband unless he has been guilty of some matrimonial offence which justifies her, in the eye of the law, in living apart from him',

and observed that it was the breach without lawful cause of the duty of the wife to reside with her husband that gave rise to the cause of action.

5. Learned Counsel on behalf of the petitioner argued that the cause of action in a suit for maintenance is the same as that for a suit for restitution of conjugal rights. As observed by Sargent C. J. in -- '18 Bom 316 (B)',

'the gist of the action for restitution of conjugal rights is that married persons are bound to live together, and that one or other has withdrawn himself or herself without lawful cause, as it was not contended that consummation was necessary by Hindu law any more than it is by English law to complete the marriage. It necessarily follows that whether the withdrawal or 'subtraction', as Blackstone terms it, be before or after consummation, there has been a violation of conjugal duty which entitles the injured party to the relief prayed.'

In -- 'AIR 1936 Mad 298 (A)', the marriage between the parties was not consummated, and It was held that whether there was consummation or not, the duty of the husband and wife was to live together 'prima facie' at the place where tile husband had a residence and the breach of duty having occurred and being on the wife's part, the cause of action must be held to have arisen in the place where there has been that breach, namely, in the husband's home.

6. It is therefore argued that the duty under the Hindu law is for the wife to reside with the husband and the husband is bound to maintain his wife only at the place where he Is living and with whom the wife is bound to live. Though no doubt the breach of that duty furnishes the immediate cause entitling the wife to claim maintenance, it has to be noticed that the suit is for separate maintenance, and not to be maintained by the husband in his house and by him. The contention, therefore, that it was the duty of the wife to live with the husband at the husband's place, where alone he is bound to maintain her loses much of its force in a suit instituted for separate maintenance by a Hindu wife against her husband. The breach no doubt will be part of the cause of action which would entitle the wife to institute the suit where the husband is living where the breach takes place. But the question that remains to be considered is whether the place of marriage does not form part of the cause of action in such a suit. It may also be noted that in the decision referred to, the question whether a suit for restitution of conjugal rights could not have been instituted in Bangalore, where the parties were married, was not considered and it cannot, therefore, be contended on the authority of that decision that in no event could marriage form part of the cause of action and a suit could not be instituted in the place where the parties were married.

7. In -- 'Ramalinga Iyer v. Jayalakshmi' : AIR1941Mad695 , a suit for maintenance was instituted by the wife against her husband at Palghat, where the wife was then residing with her father. The marriage in that case took place at Negapatam. The husband was at Vellore, where the wife last resided, and her father-in-law was residing at Mayavaram. It was held that in no view the Court in Palghat had jurisdiction to entertain the suit and that the common law rule of the debtor seeking out the creditor was not applicable to the case of a wife seeking to recover maintenance from her husband. There again the question as to whether the suit could be filed in the place where the parties were married did not arise for consideration.

8. Section 20 C. P. C. provides that every suit shall be instituted where the defendant resides or where the cause of action, wholly or in part, arises. It is sufficient, therefore, if part of the cause of action arises in a certain place and the court in that place would have jurisdiction to entertain the suit. As to what is cause of action, Indian courts have in a number of decisions accepted the meaning given to it in the leading English case on the subject, namely, in -- 'Read v. Brown', (1838) 22 QBD 128 (D). Maclean C. J. in --'Deep Narain Singh v. Dietert, 31 Cal 274 (E), while referring to that decision observes as follows :

'There Lord Esher, then Master of the Rolls, says : 'It has been defined in -- 'Cooke v. Gill', (1873) 8 CP 107 (F), 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.'

Lord Justice Fry says :

'Everything which, if not proved, gives the defendant an immediate right to judgment, must be part, of the cause of action.'

Lord Justice Lopes says:

'It includes every fact which it mould be necessary to prove, if traversed, in order to enable a plaintiff to sustain his action.'

In -- 'Guardian Assurance Co. Ltd. v. Shiva Mangal Singh' : AIR1937All208 , a Bench of the Allahabad High Court consisting of Sulaiman O. J. and Bajpai J., while reviewing the English and Indian cases on the subject referred to the following observation's of their Lordships of the Privy Council in -- 'Chand Koer v. Partab Singh', 16 Cal 98 (PC) (H).

'Now the cause of action has no relation what-ever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. 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 asked the court to arrive at a conclusion in his favour.'

9. The cause of action, therefore, comprises 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, but does not comprise the entire evidence required to obtain a judgment; and as observed by Lord Justice Pry in'-- '(1888) 22 QBD 128 (D)', i.e., everything which, if not proved, gives the defendant an immediate right to judgment would be part of the cause of action. One is not concerned in finding out as to what is the nature of the defence that may bo set up, but has only to see what is alleged in the plaint, namely, the facts that are alleged in the plaint and which require to be proved without proof of which the plaintiff would not be entitled to a judgment. Every such fact which it is necessary to prove, therefore, would form part of the cause of action. As to what is a cause of action or part of It, has, therefore, to be ascertained only from the allegations in the plaint, the facts mentioned therein and sought to be established by evidence, and even if the defendant is 'EX parte', the court must be able to pass judgment on proof of the facts alleged in the plaint, and the facts which require so to be alleged and proved constitute the entire cause of action.

In a suit for maintenance, as in the present case, the primary allegation that is required to be made in the plaint is that the parties were married. Maintenance is asked on the basis of the relationship of husband and wife. Marriage is, therefore, a fact which requires to be proved before the other facts that may be alleged in the plaint as to how and under what circumstances and in what event the wife had become entitled to be separately maintained. It is, therefore, the primary fact that has to be alleged and proved. The fact of marriage would, therefore, form part of the cause of action and the place of marriage where part of the cause of action arises would be a place where the suit could be instituted. It is again not all the facts that require to be established that could be said to form part of the cause of action, but only the essential and salient facts. Marriage, as already observed, is the primary fact and very essential to be alleged and established before the wife would be entitled to obtain a judgment for maintenance.

10. In -- 'Zamiran v. Patch All', 32 Cal 146 (I), a suit for dower was instituted in the court of the Subordinate Judge of Saran alleging that the marriage as well as the divorce took place in that district. The defendant objecting to the suit on the ground that he worked and resided at Calcutta the Subordinate Judge returned the plaint to be presented to the Presidency Small Cause Court. The District Judge, on appeal, declined to interfere with the order of the first court. The High Court in revision held that the cause of action arose within the limits of the jurisdiction of the court where the marriage and divorce took place.

11. The decision in -- 'Ghulam Hussain v. Mt. Hakambibi', AIR 1926 Lah 663 (J). was also cited, where it was held that the mere fact that the marriage of the parties had taken place within the jurisdiction cf a Magistrate was not sufficient to give the Magistrate jurisdiction under Section 488(8), Cr. P. C. That decision has no bearing on the facts of this case, as it was with reference to an application under Section 488, Cr. P. C. where under Clause (8) proceedings may be taken against any person in any district where he resides, or is or where he last resided with his wife. That decision turned upon the scope of the section under which there was no other place in which the application under Section 488 Cr. P. C. could be taken except in the place where the husband was residing or last residing.

12. I am, therefore, of opinion that a suit for separate maintenance by a Hindu wife against her husband can be instituted in the place where the parties were married, as marriage forms part of the cause of action in such a suit. The revision petition fails and is dismissed with costs.


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