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K. Jagan Mohan Rao Vs. K. Swarup - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1972)2MLJ77
AppellantK. Jagan Mohan Rao
RespondentK. Swarup
Cases ReferredRam Sarup v. Dev
Excerpt:
- g. ramanujam, j.1. this appeal arises out of a petition filed by the respondent herein under section 9 of the hindu marriage act for restitution of conjugal rights. the appellant herein married the respondent in march, 1955, and they lived together at narasaraopet from march, 1955, to the middle of 1957. as the respondent became pregnant, she was taken to madras by the appellant and was left with her parents for confinement. she delivered a still-born child on 10th august, 1957. the respondent thereafter joined the appellant at guntur by the end of 1967 where she lived with him till about may, 1-958. in may, 1958, the appellant went on leave and took the respondent to madras and after leaving her with her parents, he went away to salur, his native place to attend to a litigation.....
Judgment:

G. Ramanujam, J.

1. This appeal arises out of a petition filed by the respondent herein under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The appellant herein married the respondent in March, 1955, and they lived together at Narasaraopet from March, 1955, to the middle of 1957. As the respondent became pregnant, she was taken to Madras by the appellant and was left with her parents for confinement. She delivered a still-born child on 10th August, 1957. The respondent thereafter joined the appellant at Guntur by the end of 1967 where she lived with him till about May, 1-958. In May, 1958, the appellant went on leave and took the respondent to Madras and after leaving her with her parents, he went away to Salur, his native place to attend to a litigation concerning his family house. On the expiry of the leave, the appellant was posted to Srikakulam where the respondent joined him in November, 1958. In June, 1959, the appellant was promoted from Supervisor to Assistant Engineer and posted to Vizag. The appellant went to Vizag leaving the respondent at Srikakulam and took charge on 16th June, 1959. After fixing up an accommodation at Vizag the appellant went to Srikakulam and brought the respondent to Vizag on 6th July, 1959. On 9th September, 1959, the couple left Vizag and came over to Madras. Ever since that date the respondent has been residing only in Madras. All the above facts are not in controversy. But the controversy is only in relation to the circumstances under which the respondent was brought from Vizag to Madras in September, 1959, where she continues to reside with her parents.

2. The case of the respondent is that during the last stages of their stay in Vizag the respondent was ill for a short time and as accommodation at Vizag was costly and not convenient and as the appellant's jurisdiction extended upto Nellore as a result of which he had to spend most of his time on tour, the couple decided that the residence at Vizag should be vacated and that they should take up residence at Madras so that the appellant may visit the respondent as often as possible whenever he went over to Neilore. The couple came to Madras and stayed together from 10th September, 1959, to 14th September, 1959, and the appellant left for Neilore on 14th September, 1959, promising to return in two days to take the respondent to Tirupathi to fulfil a vow. The appellant did not turn up but sent a telegram on 25th September, 1959, from Neilore asking the respondent's father to meet him there. On 26th September, 1959, the respondent and her parents went to Neilore and stayed in the Traveller's Bungalow for the night. The appellant and the respondent together slept in one suite of rooms and her parents stayed in another suite of rooms. The next morning the appellant flourished before the respondent's father three letters said to have been written by the respondent to her alleged paramours. This he did with a view to blackmail and malign the respondent's parents for extracting some money from them for discharging his liability over the family house. Thereupon, the respondent and her parents came over to Madras on 27th September, 1959, and ever since that date the appellant has refused to take back the respondent and the conduct of the appellant forcing her to live in her parents' house at Madras is unjustified.

3. The case of the appellant husband is, however, as follows : - The couple never intended to vacate their residence at Vizag in September, 1959, but they - came to Madras only for a temporary visit and when it was found that the respondent was unchaste and was writing letters to her paramours in a clandestine manner, the appellant while he was at Neilore on 25th September, 1959, sent a telegram to the respondent's father to come to Neilore and when he came there with his wife and daughter (the respondent), the letters written by the respondent to her paramours were shown to him and he was thoroughly put out and immediately left to Madras with his wife and daughter. Ever since that date both the appellant and the respondent have been living apart and that he has filed O.P. No. 65 of 1961 on the file of the District Court, Vizag for dissolution of marriage impleading the paramours as co-respondents. The appellant also stated that in view of the fact that he is claiming a dissolution of marriage, the respondent will not be entitled to a decree for restitution of conjugal rights. The appellant also denied that they intended to take up permanent residence at Madras when they came over there on 10th September, 1959, and that the appellant and the respondent shared their beds at Madras between 10th September, 1959, and 14th September, 1959, and at Neilore on 26th September, 1959, as alleged by the respondent. The appellant also questioned the jurisdiction of the lower Court to entertain the petition for restitution of conjugal rights on the ground that the parties never took up residence within the jurisdiction of the Court.

4. The trial Court held that it had jurisdiction to entertain and try the petition for restitution of conjugal rights, expressing the view that the appellant and the respondent when they came over *O Madras on 10th September, 1959, had intended to take up permanent residence in Madras after winding to their establishment at Vizag, and that the appellant and the respondent had stayed in Madras for a period of 4 days from 10th September, 1959, to 14th September, 1959 with intention to set up a home there. On the question whether the respondent had forfeited her rights to obtain restitution of conjugal rights by reason of her adulterous conduct, the lower Court had found that the letters, Exhibits B-1 to B-3 said to have been written by the respondent to her paramours h ad not been duly proved, that the evidence adduced in the case showed that the appellant himself was a victim of a plot hatched up by his brother and others, and that the letters, Exhibits B-1 to B-3 had been concocted by them with a view to poison the mind of the appellant against the respondent so that the respondent's father may come forward to pay a lump sum to the appellant. The lower Court also felt that even if the letters Exhibits B-1 to B-3 were written by the respondent, that will not be taken as proof of adultery, that in any event, the appellant's conduct in cohabiting with the respondent while at Madras between 10th September, 1959, and 14th September, 1959, and also at Neilore on 26th September, 1959, at the Traveller's Bungalow, long after the appellant Claims to have known about the alleged adulterous conduct of the respondent, will amount to condonation and that, therefore, the respondent has not forfeited her rights to obtain restitution of conjugal rights. In that view the lower Court has granted to the respondent a decree for restitution of conjugal rights. The appellant questions the correctness of that decree for restitution of conjugal rights passed by the lower Court.

5. The respondent has filed a petition C.M.P. No. 12127 of 1970 praying for the dismissal of the above appeal on the ground that the O.P. filed by the appellant for dissolution of the marriage under Section 13 of the Hindu Marriage Act, 1955, before the District Court, Vizag had been dismissed by that Court, and that when the appellant took the matter in appeal before the Andhra Pradesh High Court in C.M.A. Nos. 355 and 377 of 1965 the same had also been dismissed. The respondent contends in this petition, that, in view of the dismissal of the appellant's application for dissolution of marriage or for judicial separation, he cannot resist the respondent's application for restitution of conjugal rights. The appellant, however, resists the petition on the ground that the dismissal of the O.P. for dissolution or marriage or for judicial separation by the District Court was only for default, that such a dismissal cannot be construed as the decision on merits, and that, therefore, it cannot stand in the way of the appellant agitating his defence in these proceedings.

6. The respondent has also filed C.M.P. No. 13832 of 1970 seeking an order for payment of a permanent alimony of Rs. 500 a month under Section 151, Civil Procedure Code. This petition is resisted by the appellant on the ground that the claim for permanent alimony at the rate of Rs. 500 per month cannot be sustained, and th at this Court had ordered in G.M.P. No. 6899 of 1966 for the payment of an interim maintenance at the rate of Rs. 150 per month, that there has been no change of circumstances calling for an increase in the monthly maintenance, and that the respondent herself is earning a sum of Rs. 500 per month after completing B.A. Degree examination privately.

7. In this appeal, the following points have to be considered:

(1) Whether the lower Court h ad jurisdiction to entertain the petition for restitution of conjugal rights filed by the respondent?

(2) Whether this appeal is liable to be dismissed on the ground that the appellant's petition for dissolution of marriage or for judicial separation had been dismissed by the Courts in Andhra Pradesh?

(3) Whether the respondent is guilty of adulterous conduct?

(4) Whether there has been a condonation of the same by the appellant and

(5) Whether the respondent is entitled to any permanent alimony and if so, at what rate?

8. Point 1 : On the question of jurisdiction, the learned Counsel for the appellant contended that the marriage did not take place in Madras, nor the couple resided at Madras at any time, and that, therefore, the lower Court should not have entertained the petition for restitution of conjugal rights. What the learned Counsel says is that mere temporary stay in Madras for some time will not make Madras a place of residence of the couple, that the decisive test was to find out whether the parties intended to make Madras as their permanent place of residence, and that the Court below has overlooked certain admissions made by the respondent in her evidence as P.W. 6 before the Court that the appellant had no intention to reside at Madras at any time. The learned Counsel for the respondent, however, states that the couple had no permanent place of residence when they came to Madras in September, 1959, they having vacated their rented premises at Vizag that their stay at Madras between 10th September, 1959 to 14th September, 1959, should be treated as their place of residence and that the lower Court was, therefore, clothed with the jurisdiction to entertain and try the petition. It is also contended on behalf of the respondent that, even if the lower Court is found to have no jurisdiction to entertain and try the petition, the appellant having acquiesced in the proceedings by taking part therein before the lower Court, he is estopped from questioning the jurisdiction at the later stages of the same proceedings or in the appeal. It is seen from the evidence of P.W. 2, the owner of the house in which the parties resided at Vizag that they vacated the building in September, 1959, when they proceeded to Madras. There is no reason as to why that evidence should not be accepted. He has no motive to take sides in the matter and to depose falsely corroborating the evidence of the respondent as P.W. 6, that they vacated the house in which they were living in Vizagapatam. before they proceeded to Madras. It is true, the appellant had denied that they vacated the house at Vizagapatam before they came to Madras on 10th September, 1959. But he has not established by producing the necessary material to show that he continued to occupy the house at Vizagapatam as a place of residence even after 10th September, 1959. Hence it has to be taken that when they came to Madras they had no place of residence at Vizagapatam. The fact that the parties were staying together in the respondent's father's house at Madras from 10th September, 1959 to 14th September, 1959, is not in dispute. In the light of these facts the question has to be considered as to whether the lower Court had jurisdiction to entertain the petition for restitution of conjugal rights and try the same.

9. Section 19 of the Hindu Marriage Act which deals with the question of jurisdiction of the Court is as follows:

Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together.

In Bright v. Bright I.L.R. (1909) Cal. 964 Fletcher, J., had held that where the husband and wife had no permanent residence, a petition for dissolution of marriage could be entertained by the Court having jurisdiction over the place where they 'last resided together' though for a short period. In that case, the husband was engaged as an Engineer in the Railway and his habitation changed very frequently from place to place and their stay in Calcutta for a period of 16 days before their actual separation was taken as sufficient to confer jurisdiction on the Calcutta Court to entertain the petition. In Mrs. E.H. Jolly v. St. John William Jolly (1917) 40 Ind.Cas. 706 : 21 C.W.N. 872 while construing the scope of Sub-section (9) of Section 488, Criminal Procedure Code, the Court held that the residence of the husband in Calcutta for 8 days when the application under Section 488, Criminal Procedure Code, was filed was sufficient to give the Court in Calcutta jurisdiction under Section 488, Criminal Procedure Code. Murphy v. Murphy I.L.R. (1921) Bom. 547 was a case where the parties lived as husband and wife at several places in India and Burmah and ultimately the husband was serving in a regiment in Mesopotamia from which place he came to Bombay on leave to join his wife and stayed with his wife at Taj Mahal Hotel in Bombay and at Mount Abu for nearly a month., The question was whether the Court at Bombay had jurisdiction to entertain a. petition for divorce by the wife and it was held that their stay at Bombay was sufficient to clothe that Court with jurisdiction, to entertain the petition. In Karirunnissa v. Bashir Ahmed I.L.R. (1929) Bom. 781 it was held by a Division Bench that where the husband and wife had a fixed place of abode or permanent place of residence, a casual temporary residence in any other place would not confer jurisdiction on the Court situate in that place under Section 488(8) of the Code of Criminal Procedure, but that where the husband and wife had no place of abode or permanent place of residence, their casual or temporary residence at a place for about 8 days would give the Court of that place jurisdiction to entertain an application under Section 488, Criminal Procedure Code. In In ref. Sama Jetha A.I.R. 1930 Bom. 348 while construing the provisions of Section 488(8), Criminal Procedure Code, the words 'last resided' were held to include husband's temporary residence for two months with the wife at the house of parents-in-Law. In Tara Singh V. Jaipal Singh I.L.R. (1964) Cal. 604 the couple left for various places after the husband lost his job. They lived about a week in Darjeeling and left. It was held that the District Court of Darjeeling was competent under Section 3(3) of the Indian Divorce Act to entertain a petition for divorce. Ramaswami, J., in Sampoornam v. Sundaresan : AIR1953Mad78 had considered the scope of Section 488(8) of the Code of Criminal Procedure and expressed the view that Section 488(8), does not necessarily refer to a permanent residence and the word 'residence' refers to something more than a brief visit, but not such a continuity as to amount to domicile and that the Section should not be strictly construed so as to deprive a woman, who-often in these cases is helpless, of assistance from a Court easily access Die to her. In Janak Dulari v. Narain Dass the scope of Section 19 of the Hindu Marriage Act came to be considered. In that case the parties had been married at Jullunder and the application for restitution of conjugal rights was filed by the husband in Amirtsar Court. The wife objected to the jurisdiction of that Court on the ground that the parties had last resided together at Gurdaspur and that she was residing at the time of the application at Palampur. While deciding the question of jurisdiction, it was held that the Court within whose jurisdiction the husband and wife reside or last resided together is the Court where the application w6uld lie, and that a brief and flying visit for 3 days by the husband to Gurdaspur to bring about reconciliation will not make that place a place of residence. According to the learned Judges the word 'reside' implies something more than a mere brief or flying visit. In Jagir Kaur v. Jaswant Singh : [1964]2SCR73 it has been laid down that the word 'residence' cannot be equated to domicile.

10. On a due consideration of the decisions referred to above with reference to the facts of this case, it has to be held that the parties had no permanent place of residence and that they vacated their place of residence at Vizagapatam and came over to Madras where they had stayed for a period of four days in the respondent's father's residence in September, 1959. It is the respondent's case that the intention of the couple was to set up a home in Madras (as the jurisdiction of the appellant (extended upto Nellore. Though that is denied by the appellant, he has not denied the fact that he came over to Madras with the respondent and stayed there for four days Defore leaving for his work spot. In the light of these facts I have no reason to disagree with the view taken by the lower Court that it had jurisdiction to entertain the respondent's petition for restitution of conjugal rights and that their stay at Madras from 10th September, 1959 to 14th September, 1959 is sufficient to confer jurisdiction on the lower Court to entertain the petition. The finding of fact arrived at by the Court below is that the couple left Vizagapatam with the deliberate intention of closing down their residence in that place, and taking up a residence in Madras in the house of P.W. 3 so that the respondent may reside with her parents and the appellant may visit her whenever he comes to Nellore in the course of his official duties. Though the period of stay in Madras was only about 4 days, having regard to the fact that the appellant had no fixed or permanent place of residence, the lower Court was justified in holding that it had jurisdiction. In Srinivasa Moorthy v. Venkatavarada Aiyangar I.L.R. (1911) Mad. 257 : 38 I.A. 129 : 1911 21 M.L.J. 669 a resident of Mysore which was his permanent place of residence went to Madras with his wife with the intention of staying there for a few months leaving the Mysore house in charge of servants. It was held that he must be deemed to dwell in Madras. The admission said to have been made by the respondent that the appellant had no intention to reside at Madras has to be understood in the sense that the appellant did not want to permanently reside at Madras.

11. The learned Counsel for the respondent also contends that in any event the appellant is estopped from raising the question of jurisdiction of the Court, as he had acquiesced in the jurisdiction of the lower Court by taking part in the proceedings. Before dealing with the above contention it is better to know as to what happened before the trial in the lower Court. The appellant requested the Court to decide the issue of jurisdiction as a preliminary issue and the case was posted for that purpose on 9th January, 1967. At that stage, the respondent took an application in I.A. No. 420 of 1964 for the trial of the case on all the issues stating inter alia, that the facts relating to jurisdictional issue are mixed up with the matters covered by the main issue and that, therefore, the entire case might be tried. The appellant's learned Counsel did not object to this course and thereupon the case was taken up for trial on all the issues. The learned Counsel for the respondent now states that the appellant having agreed for a trial on all the issues, without insisting on the jurisdictional issue being tried as a preliminary issue should be deemed to have waived the objection as to jurisdiction.

12. The respondent's learned Counsel referred to the following decisions in support of his plea that the appellant 'having gone to trial on the merits of the case, it is no longer open to him to raise the question of jurisdiction of the lower Court to entertain and try the case. In Sivaraman Chetti v. Iburam Saheb I.L.R. (1895) Mad. 327 the following observations have been made while dealing with the question of jurisdiction.

Had the defendant been allowed a hearing and the case then decided against him, we should have held following Kandoth Mammi v. Abdu Kalandan (1875) 8 M H.C.R. 14 and Fazed Shau Khan v. Gafar Khan I.L.R. (1892) Mad. 82 that having taken the chance of a judgment in his favour, he could not, when an action is brought against him on the judgment take exception to the jurisdiction.

In Baroda State v. Habib Ullah A.I.R. 15 Mad. 82 the question arose as to whether it is open to the defendant to raise a plea of jurisdiction after having defended the suit on its merits. It was held that the defendant though took the plea of want of jurisdiction had taken part in a protracted trial, produced evidence, cross-examined the parties and took his chance of winning the case on merits, it was no longer open to him to say that the Court had no jurisdiction to entertain the suit. In this case the learned Judges have referred to the following observations of Buckley, L.J. in Harris v. Taylor 113 L.T. 221:

The question which we have to decide in this appeal depends, as I have said, on whether the defendant submitted to the jurisdiction of the Isle of Man Court, and, in order to decide that question, it is necessary to consider what it was that the defendant did on 17th March, when as the record states, he appeared conditionally to set aside the writ. When the defendant was served with the process he had the alternative of doing nothing; although the Court might have given judgment against him, the judgment could not have been enforced against him unless he had some property within the jurisdiction of the Court. But the defendant was not content to do nothing. He did something which he was not obliged to do; but which, I take it, he thought it was in his interest to do. He went to the Court and contended that the Court had no jurisdiction over him. The Court however decided against this contention, and held that the defendant was amenable to its jurisdiction. In my opinion, there was a voluntary appearance by the defendant in the Isle of Man Court, and a submission by him to the jurisdiction of that Court. If the decision of that Court on that occasion had been in his favour he would have taken advantage of it; as the decision was against him he was bound by it, and it became his duty to appear in that action; and as he chose not to appear and to defend, he must abide by the consequences which follow from his having done so.

In Subramania v. Annasami : (1947)2MLJ279 Kuppuswami Ayyar, J., expressed the view that when the defendant voluntarily gave materials which formed records of the case, his act amounted to submission to the jurisdiction of that Court. In that case the plaintiff filed a suit in Trivandrum Court. The defendant did not appear. The plaintiff got a Commission issued to the Court at Srivaikuntam to have the defendant summoned and examined as a witness. The defendant appeared and pleaded that the Court at Trivandram had no jurisdiction to try the suit. He, however, engaged a counsel, objected to the questions put to him in his examination and finally got himself cross-examined and raised a plea in the course of cross-examination which if it bad been accepted by the Court would have ended in the dismissal of the suit. On those facts it was held that as the Commission evidence was part of the records of the case in the Trivandrum Court, it is not open to the defendant to raise the question of jurisdiction of the Trivandrum Court after having voluntarily given materials for decision on the merits of the case and thus submitted to the jurisdiction of the Court. The following passage in Dicey's Conflict of Laws, 5th edition at page 407 is instructive:

A person who voluntarily appears as defendant in an action submits himself to the judgment of the Court so that he cannot afterwards dispute its jurisdiction. A submission is, however, held to be voluntary, not only when the defendant appears and pleads to the merits of the case without protesting against the jurisdiction, but also when, although protesting, he also pleads to the merits and even if he merely appears in order-to protest against the jurisdiction. The ground on which such an appearance as the last can be deemed voluntary is that there is no compulsion on a defendant to recognise in any way the jurisdiction of a Court which has not, under the rules dealt with in this Digest; jurisdiction over him; if therefore, he chooses to appear and to object to the jurisdiction of the Court, he involves himself in the necessity of submitting to that jurisdiction, if the plea to the jurisdiction should be disallowed by the Court. Nor does it make any difference what the motive of his appearance may be. An appearance is equally vountary whether it be motivated by the fact that the defendant has property within the jurisdiction of the Court on which execution may be - or has actually been - levied in the event of judgment going against him by default, or even by the fact that, though he has no property within the jurisdiction, his business often takes him within the jurisdiction so that the judgment of the Court might be made effective against him.

In Ramanlal v. Ramgopal A.I.R. 1954. 135 it was held that if the defendant had submitted himself to the jurisdiction of the Court inasmuch as he did not limit his contest to a protest as to jurisdiction only in that Court, but fought the case on all points relating to the merits, led evidence, and cross-examined the plaintiff who appeared as a witness on his own side and fully took the chance of a judgment in his favour and having done all that he cannot be allowed now to disown that Court, and to say that it had no jurisdiction to entertain the suit against him. In B. Petroleum Co. v. P.J Pappu : (1966)IILLJ144SC . Their Lordships of the Supreme Court had occasion to consider the question of waiver of a territorial jurisdiction; of the Court and they have expressed the view that where the defendant allows the trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he waives the objection and will not be subsequently permitted to raise it, and that a long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection as to jurisdiction. It was held that though the Court which entertained the suit had no territorial jurisdiction to try the same under Section 20;. Civil Procedure Code, once the Court entertains and adjudicates on a matter, Section 21 of the Code of Civil Procedure will cure the defect as to the place of suing, as it is a statutory recognition of the-principle that the defect as to the place of suing under Sections 15 to 20 may be-waived by the parties, and that even independent of Section 21, the defendant: may waive the objection and may be subsequently precluded from taking it in the appellate or revisional Courts. Their Lordships had referred to the earlier decision of their own in Kiran Singh v.. Chaman Paswan : [1955]1SCR117 wherein the policy underlying Section 21 of the Code of Civil Procedure has been clearly brought about.

13. As against the above decisions relied, on by the learned Counsel for the respondent, the learned Counsel for the appellant refers to the decision in Janak Singk v. Raji A.I.R. 1970 J. & K. 19 Where the wife filed an application for dissolution of her marriage or in the alternative for judicial separation. The husband remained ex parte and the Court, after recording the statement of two witnesses produced by the wife passed an ex parte decree in her favour for dissolution of marriage. Against the ex parte decree the husband went On appeal and. the appellate Court set aside the ex parte decree and remanded the case for fresh disposal in accordance with Law. After remand the husband raised various defences regarding the merits of the application as also regarding the territorial jurisdiction of the Court. The trial Court, after allowing the parties to adduce their evidence in support of their respective contentions, proceeded to decide the objection as to the jurisdiction of the Court as a preliminary issue, and held that the objection with regard to jurisdiction of the Court not having been raised in the memorandum of appeal filed by the husband against the ex parte decree, it was not open to him to agitate the matter afterwards. That order was challenged in revision before the High Court. It was contended before the High Court on behalf of the husband that in the objections filed by the husband before the trial Court he not only contested the case on merits but also raised a specific objection as to the territorial jurisdiction of the Court and that, therefore, he cannot be said to have waived the question of jurisdiction. The Court upheld the contention holding that the husband cannot be said to have submitted to the jurisdiction of the trial Court or abandoned the objection as to jurisdiction merely on the ground that he did not raise it in the memorandum of appeal filed by him for setting aside the ex parte decree, and that at that stage he was merely interested in having the ex parte decree passed against him set aside, that he could raise the question of jurisdiction only at the time of the trial of the main application and that the failure on the part of the husband to raise the question of jurisdiction in his memorandum of appeal against the ex parte decree could not turn the trial Court into a legally constitution one if otherwise it did not possess the requisite jurisdiction. It is seen from the facts of that case that the Court did not try the case on merits but only decided the issue of jurisdiction as a preliminary issue. The husband's conduct in not raising the issue of jurisdiction in the grounds of appeal filed by him against the ex parte decree was sought to be construed as a waiver of jurisdiction and the Court held that the mere failure to take the objection in the appeal against the ex parte decree will not amount to a waiver of jurisdiction, and that so long ag the suit has not been tried on merits by the trial Court, it is open to the husband to raise the question of jurisdiction. The case before the Supreme Court in B. Petroleum Co. v. P.J. Pappu : (1966)IILLJ144SC was also a case where the question of jurisdiction was taken as a preliminary issue before the Court trying the case on merits, and the Supreme Court had held that objecting to the jurisdiction and also pleading to the merits of the case cannot be construed as waiver or abandonment of the objection as to jurisdiction and that the defendant is not precluded from raising the objection as to jurisdiction if the trial Court has not given a verdict on merits at the time when the objection was taken in the appellate or revisional Court. In this case the trial has proceeded on merits and the appellant has invited the Court to give a decision on merits without insisting on the question of jurisdiction being decided as a preliminary issue. After the trial Court has given a decision on the merits of the case on the rival contentions of parties, it appears to me that it is not open to the appellant to raise the question of jurisdiction at the appellate or revisional stage, as the appellant's conduct in taking part at the trial on merits of the case will clearly amount to a waiver of objections as to jurisdiction. Section 21 of the Code of Civil Procedure provides that no objection as to place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been consequent failure of justice. As pointed out by the Supreme Court in Kiran Singh v. Chaman Paswan : 1966CriLJ305 the policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been prejudice on the merits. In this case the appellant, having allowed the lower Court to proceed to decide on the merits of the case and taken a chance of having a decision in his favour from the lower Court, is in my view prevented from raising the question as to the jurisdiction at the appellate stage. I therefore hold that it is not open now to the appellant to raise the question of jurisdiction of the lower Court to entertain the original petition.

14. On the second question as to the maintainability of the appeal, it is seen that the appellant had filed a petition for dissolution of marriage and that petition had been dismissed for default. The appellant sought to have the dismissal of that petition set aside by filing a petition before the District Court, Vishakhapatnam but he was unsuccessful. The appellant also filed an appeal against the dismissal of his petition for dissolution of marriage for default in the High Court but there also he was unsuccessful. The judgment rendered by the High Court while dismissing the appellant's appeal before that Court is sought to be filed as additional evidence in this appeal by the respondent in C.M.P. No. 2215 of 1971. As I consider that it has got a bearing on the issues involved in this appeal, I allow that petition and receive the same as part of the evidence in the case. In that order the High Court of Andhra Pradesh has held that there was no valid reason adduced by the appellant for setting aside the order of dismissal for default. But the High Court has given opportunity to the appellant to file a fresh application after the disposal of the appeal before this Court. Having regard to the fact that neither the District Court nor the High Court of Andhra Pradesh has disposed of the case on merits, I am not inclined to hold that this appeal is liable to be dismissed on the ground that the appellant's attempt to have a dissolution of marriage had failed. I do not, therefore, agree with the contention of the learned Counsel for the respondent that the appeal is liable to be dismissed in view of the dismissal of the appellant's appeals. C.M.A. Nos. 355 of 1965 and 277 of 1966 on the file of the Andhra Pradesh High Court.

15. The more important question is as to whether the appellant has established the case of adultery put forward by him in answer to the claim of the respondent. for restitution of conjugal rights. Stray' acts of adultery on the part of the wife in the absence of proof of her 'living in-adultery' is no ground for granting the; husband a dissolution of marriage under Section 13(1)(i) of the Hindu Marriage Act, though such stray acts might entitle the husband to a judicial separation under; Section 10(1)(f) in the absence of proof of condonation or connivance. In view; of Section 9(2) it is enough for the appellant to prove a stray act of adultery. Normally it is difficult to establish the factum of adultery by direct evidence of adulterous intercourse and it has only to be proved by circumstantial evidence from which the Court can draw an inference beyond reasonable doubt. As has been held in Adelaide v. William A.I.R. 198 Cal. 133 the circumstantial evidence must be sufficiently strong and conclusive. Association coupled with opportunity, illicit affection, undue familiarity, guilty attachment are some of the instances which create an inference upon which the Court can act. The burden of proof is always on the person alleging adultery. The circumstantial evidence can prove and establish adultery, provided the circumstances are relevant, cogent and compelling. In the 7th edition of Rayden's Practice and Law in Divorce Division, 1958, the Law is stated at page 133 thus:

It is not necessary to prove the direct fact, or even an act of adultery in time and place or even the name of the person with whom the respondent is; alleged to have committed adultery.. In nearly every case the fact is inferred, from circumstances which lead to it, by fair inference, as a necessary conclusion. The Court must be satisfied that: there was something more than opportunity before it will fix the guilt; evidence of a guilty intention or passion is; needed in addition.

Lord Buckmaster in Ross v. Ross (1930) A.C. 17 has clearly pointed out that 'adultery is; essentially an act which can rarely be proved by direct evidence. It is a matter of inference and circumstances'. The circumstantial evidence on which the Court can infer the factum of adultery may be broadly classified under different beads such as (1) familiarity, (2) evidence of either spouse (3) birth of a child, and (4) visiting a brothel and such other cognate or other acts from which legitimate inference could be taken. But whether such inference will be drawn or not will depend certainly on the facts in each case and upon the Court's assessing and evaluating such facts. Bearing the above principles in mind, the facts established in this case have to be analysed.

16. The evidence on the question of adultery mainly consists of the oral evidence of the appellant as R.W. 1 and the documentary evidence Exhibits B-1 to B-3, letters said to have been written by the respondent to her alleged paramours, and Exhibits B-5 and B-6, letters writen by the respondent's father, P.W. 3 to the appellant. The oral evidence of the appellant is mainly hearsay based on the information which he has received from others and on the contents of Exhibits B-1 to B-3. Exhibit B-1 is a letter purported to have been written on 4th July, 1959 by the respondent from Srikakulam to her alleged paramour, one Renga Rao. Exhibits B-2 and B-3 are both dated 8th July, 1959 and they are purported to have been written by the respondent from Vizag to her alleged paramours the said Renga Rao and another Satyanarayanamoorthy respectively. These letters are said to have been handed over to Muthiyalu, the peon who was serving under the appellant at Srikakulam for posting. The said Muthiyalu, peon, is said to have gone to Vizag along with the personal effects of the appellant and that at that time the letters Exhibits B-2 and B-3 are said to have been handed over to him for posting. All these three letters are said to have been intercepted by one Girisam who is said to have handed over them to the brother of the appellant who in turn handed over the same to him. There are inherent improbabilities I in the case of the appellant in respect of Exhibits B-1 to B-3. Though it is possible that the letter Exhibit B-1 could have been handed over by the respondent to Muthiyalu while she was at Srikakulam on 4th July, 1959 and intercepted by Girisam, that could not have been possible in respect of Exhibits B-2 and B-3. Firstly, the peon, Muthiyalu is said to have come to Vizagapatam only on 4th July, 1959 and again after 14th July, 1959, even as per the evidence of the appellant. He could not have been there at Vizaga patam on 8th July, 1959 when the letters Exhibits B-2 and B-3 are said to have been written by the respondent. Even assuming that the letters were handed over to Muthiyalu on 8th July, 1959, those letters could not have been intercepted by Girisam who on the relevant date, that is 8th July, 1959 was at Srikakulam. Further, the appellant has not examined Muthiyalu who is said to have got the letters from the respondent for posting, and Girisam who is said to have intercepted those letters, nor the brother of the appellant who is said to have got the letters from Girisam and handed them over to him. The circumstances under which the letters Exhibits B-1 to B-3 are said, to have come to the custody of the appellant are, therefore, left in a mystery. There is no connecting link between the respondent and the letters Exhibits B-1 to B-3 excepting the allegation of the appellant that the hand writing in Exhibits B-1 to B-3 is; that of the respondent. Even here the respondent has denied that the handwriting in these letters is hers. Except the mere asseition of the appellant that the: hand writing in Exhibits B-1 to B-3 is that of the respondent, there is no other evidence to establish that it is she who wrote the letters. As pointed out already, if Muthiyalu, the person who is said to have been entrusted by the respondent with these letters for posting had been examined to speak to the factum of the letters having been handed over to him by the respondent, the sufficient nexus between the letters and the respondent would have been established. Muthiyalu was serving as a peon under the appellant and there is no reason given as to why he was not examined to establish the link between the letters Exhibits B-1 to B-3 and the respondent Further Muthiyalu was not admittedly at Vizagapatam when the letters, Exhibits B-2 and B-3-are said to have been written and there is no evidence as to how Girisam and the appellant's brother Bhima Rao who were not at Vizagapatam at the relevant time got possession of these letters. The appellant has stated that the letters Exhibits B-1 to B-3 which are in the handwriting of the respondent had been handed over to him by his brother on the night of 31st August, 1959, that he got a shock of his life on seeing those letters, that he questioned the respondent on the night of 1st September, 1959 and that in spite of repeated questioning about the letters the respondent continued to keep mum practically till 9th September, 1959, when they left Vizagapatam for Madras. According to the appellant the reason for leaving Vizagapatam was that the respondent was anxious to go to her parents' place as a result of the continued interrogation by the appellant about the letters. But the reason attributed by the appellant for the parties leaving Vizagapatam and coming to Madras on 9th September, 1959, seems to be improbable. The respondent has written to her mother even on 29th August, 1959, (Exhibit A-64) long before the appellant is said to have come across the letters, Exhibits B-1 to B-3, informing that she and her husband would be leaving Vizagapatam the next day which shows that they intended to leave Vizagapatam for Madras even on 29th August, 1959. The letter Exhibit A-64 refers to certain details which the respondent would discuss with her mother on reaching Madras. As to what are the details referred to in that letter, the parties are at variance. According to the appellant the 'details' referred to there concerns the letters Exhibits B-1 to B-3 but according to the respondent the 'details' referred to related to their proposed shifting of their home from Vizagapatam to Madras. Whether the respondent's version about the 'details' referred to in the letter Exhibit A-64... is probable or not, the version given by the appellant is clearly improbable for the reason that the appellant has deposed that he Was handed over the letters Exhibits B-1 to B-3 only on the night of 31st August, 1959 and that he questioned the respondent about those letters on the night of 1st September 1959, and not earlier. Hence it is not possible to construe the details referred to in Exhibit A-64 dated 29th August, 1959 as having anything to do with the letters Exhibits B-1 to B-3. Further, the conduct of the appellant during their stay at Madras seems to throw considerable doubt as to the appellant's version that he was in possession of the letters, Exhibits B-1 to B-3 even on 31st August, 1959. If really the appellant had suspected the fidelity of his wife on the basis of those letters Exhibits B-1 to B-3 which came to him on 31st August, 1959, he Would not have moved with the respondent in the normal manner as he had done during his stay at Madras. The evidence of the respondent, her father P.W. 3 and brother, P.W. 5, and of P.W. 1 in my view shows that the relationship between the appellant and the respondent was quite cordial and intimate, and that there was no symptom of any disagreement between them. As a matter of fact, the respondent is categoric that she had normal cohabitation with the appellant during their stay at Madras, and also the normal social visits and shopping together at Madras. Such will not be the conduct of the appellant, if really he had doubtea the fidelity of his wife based on the letters Exhibits B-1 to B-3. AH these facts indicate that the appellant's version that the letters Exhibits B-1 to B-3 were handed over to him by his brother on 31st August, 1959 cannot be true, but that he became aware of these letters only on or about 25th September, 1959 when he sent a telegram to the respondent's father asking him to go over to Nellore. It is highly improbable that when Exhibits B-1 to B-3 were handed over to the appellant on 31st August, 1959 by his brother he went on questioning the respondent till 14th September, 1959 and at the same time had normal cohabitation with her. The appellant's explanation is that he wanted to verify the facts contained in these letters by making a local enquiry at Srikakulam, that he went to Srikakulam on or about 20th September, 1959, and that only after he became convinced about the truth of the matters contained in the letters they were shown to the respondent's father at Nellore. As already stated, we are left with the only interested evidence of the appellant herein and there is no corroboration for the facts spoken to by him as to what happen d between 14th September, 1959 after he left Madras and before the incident that took place at Nellore on 26th September, 1959. Apart from these letters Exhibits B-1 to B-3 there is no evidence adduced by the appellant as to the relationship between the respondent and the so-called two paramours. If what the appellant says about the adulterous conduct of the respondent is true, he could have easily examined the occupants of the house in which, they had lived at Srikakulam or the peon Muthialu or his mother who is said to have resented the respondent's intimacy with the alleged paramours, or the brother of the appellant who is said to have known about the questionable conduct of the respondent. The non-examination of the above persons by way of corroboration of the materials found in the letters Exhibits B-1 to B-3 makes one feel that it is quite unsafe to act on the interested testimony of the appellant which is merely based on the letters, Exhibits B-1 to B-3. Further the evidence of the respondent shows that the mother and sisters of the appellant were living most of the time with, the appellant and the respondent during their stay in their house at Srikakulam. As already stated, there is nothing to connect the letters with the respondent except the appellant's assertion that they are in the handwriting of the respondent. The respondent has denied her handwriting in those letters which are partly in Telugu and partly in English. On a comparison of her admitted handwriting and signature in English and those contained in Exhibits B-1 to B-3 there is considerable doubt as to whether the English handwriting is that of the respondent. I am in entire agreement with the lower Court when it says that there is no similarity of any of her alleged signatures in Exhibits B-1 to B-3 with the admitted signature of the respondent. Even the appellant does not appear to be sure of the fact that the letters Exhibits B-1 to B-3 contain the respondent's signature and handwriting. His version is that he compared these letters with the dhobi account maintained by bis wife and confirmed his conclusion that the letters were in the handwriting of the respondent. Though the couple have lived together for more than 5 years, the appellant bad to compare with the other admitted signatures to find out whether the handwriting and signature in Exhibits B-1 to B-3 are that of the respondent. The appellant should have become quite acquainted with the handwriting and signature of the respondent and there would not have been any necessity for him to compare it with the dhobi's account if he is so sure of the respondent's handwriting and signature. The very fact that he had to make a comparison shows that he himself was not so sure about the authorship of Exhibits B-1 toB-3. As it is in considerable doubt the direct evidence of witnesses on the question of the genuineness of the documents becomes important and indispensable. The appellant has not adduced any evidence direct or circumstantial to prove that the letters Exhibits B-1 to B-3 had actually been written by the respondent. The learned Counsel for the appellant pleads for an opportunity being given to him to have the letters Exhibits B-1 to B-3 sent to a handwriting expert for finding out whether the handwriting and signature in these letters are those of the respondent. As pointed out by Their Lordships of the Supreme Court in Fakruddin v. State of M.P. (1967) M.L.J.925 : (1967) 2 S.C.J. 885 : A.I.R. 1967 S.C. 1326 the handwriting may be proved by direct evidence on the admission of the writer or by the evidence of some witness in whose presence he wrote. If such direct evidence is available any other kind of evidence is rendered unnecessary. Though under Section 45 of the Evidence Act the opinion of the handwriting expert or one who is familiar with the writing of the person concerned is relevant, the Court also is entitled to compare the disputed signature and handwriting with a writing made by the concerned person in the presence of the Court or admitted or proved to be in the handwriting of the person under Section 73 of the Evidence Act. According to Their Lordships of the Supreme Court the evidence given by an expert under Section 45 by a scientific comparison or by a person who is familiar with the handwriting of the person said to be the author of the document on the basis of the familiarity resulting from frequent observations and experience under Section 47 of the Evidence Act is relevant for the Court to satisfy itself by such means as are open that the opinion may be acted upon and that one such means open to the Court is to apply its own observation to the admitted or proved writing and to compare it with the disputed one, and such comparison depends on an analysis of the characteristics in the admitted or proved writings. As requested by the learned Counsel for the appellant even if the letters are sent to a handwriting expert, the Court cannot accept any opinion that may be given by the handwriting expect without subjecting the same to a further scrutiny. In this case, on a comparison of the admitted handwriting and signatures with that occurring in the disputed letters, there appears to be no similarity. In the facts and circumstances of this case when the Court feels no doubt as to the dissimilarity in the signature and handwriting of the respondent, I consider it unnecessary to send the letters to an expert at this stage.

17. The other letters which are relied on by the appellant to connect the letters, Exhibits B-1 to B-3 are Exhibits B-5 and B-6 letters admittedly written by the respondent's father to the appellant. These letters are said to lead to the inference that the respondent wrote the letters Exhibits B-1 to B-3. But a reading of the letters, Exhibits B-5 and B-6 shows that they were written by P.W. 3'with great emotion. Though P.W. 3 says that his daughter might have written the letters under certain circumstances and surroundings that obtained in Srikakulam, he could never believe that she was capable of being unfaithful to the appellant. But these letters Exhibits B-5 and B-6 cannot be construed as admissions on the part of the respondent as the letters were not written by her. It is not possible to construe these letters as admissions on the part of the respondent that she wrote the letters Exhibits B-1 to B-3. Though Exhibits B-5 and B-6 referred to the letters that might have been written by the respondent, they cannot be taken to refer to the letters Exhibits B-1 to B-3. The respondent is not a party to these letters and any amount of admission made by her father would not bind her. Unless reliable, independent and acceptable evidence is forthcoming to show that the respondent wrote the letters, Exhibits B-1 to B-3, it is not possible to construe Exhibits B-5 and B-6 as proving that Exhibits B-1 to B-3 were written by the respondent. Further, there is no evidence that the letters Exhibits B-5 and B-6 were written by the respondent's father after consulting her or that the respondent had admitted the writing of the letters before her father long before the letters Exhibits B-5 and B-6 were written. On a consideration of the entire evidence in this case, it is not possible for this Court to say that the appellant has succeeded in establishing his case of adultery against the respondent. Apart from Exhibits B-1 to B3 there is absolutely no evidence regarding the alleged adulterous conduct and as for Exhibits B-1 to B-3 there is no connecting link between them and the respondent. Even otherwise Exhibits B-1 to B-3 are not sufficient to establish adulterous conduct on the part of the respondent. I therefore hold that the respondent has not been shown to have committed adultery as alleged by the appellant.

18. Point 4. - The 'respondent also has put forward an alternative plea that even if the evidence adduced on behalf of the appellant is not sufficient to establish adultery on her part, the appellant's conduct subsequent to his knowledge of the alleged adultery is sufficient to constitute a condonation and that the appellant cannot take advantage of the factum of adultery after he himself has condoned the same. The respondent states that she is entitled to take such alternative plea which is not inconsistent with her main plea that no adultery has been established in the case. The respondent refers to the following facts as sufficient to infer condonation on the part of the appellant. Even according to the appellant he became aware of the alleged adulterous conduct on the part of the respondent on 31st August, 1959. Even subsequent to that date the appellant had normal sexual intercourse with her while they were at Vizagapatam and during their stay at Madras between 10th and 14th September, 1959. It is also alleged by the respondent that the appellant had cohabitation with her on the night of 26th September, 1959 at the Travellers Bungalow at Nellore. Thus it is stated that these facts are sufficient to show that the appellant has condoned the misconduct if any on the part of the respondent. The appellant on the other hand, denies that he had anything to do with the respondent during the four days of stay at Madras and states that he came to Madras from Nellore daily from 10th to 14th September, 1959 only to question the respondent about the letters Exhibits B-1 to B-3 and that he had not cohabited with her either at Madras during the said period or at Nellore when the respondent came with her father and stayed at the Travellers Bungalow. The appellant's assertion that foe came to Madras from Nellore every night during the period from 10th to 14th September, only to question the respondent about the letters is quite unbelievable. According to him he has also questioned her about the letters even at Vizagapatam and for repeated questioning he would not have taken the trouble of coming from Nellore to Madras every day. On the facts and circumstances of this case I am of the view that the lower Court is justified in inferring that the appellant would have cohabited with the respondent during their stay at Madras between 10th to 14th September, 1959. Asregards the alleged cohabitation at Nellore on 26th September, 1959 night, though the appellant has denied, the same, the letter Exhibit A-65 which the appellant wrote to P.W. 3 practically admits that he enjoyed his daughter on the night when they stayed at Nellore. In his evidence before the lower Court he admits that he slept in the same room as the respondent but they did. not sleep together meaning thereby that he did not have any intercourse both at Madras and at Nellore. Hence, in view of the admission contained in Exhibit A-65 which the appellant has not explained in his evidence, it has to be taken that the appellant should have had conjugal relationship with the respondent during the period 10th September, 1959 to 14th September, 1959 at Madras as well as on the night of 26th September, 1959 at Nellore. The learned Counsel for the respondent contends that the appellant who came to know about the alleged immoral conduct of the respondent even on 31st August, 1959 led a normal life with the respondent from 1st September, 1959 to 9th September, 1959 at Vizagapatam and from 10th September, 1959 to 14th September, 1959 at Madras and on the night of 26th September, 1959 at Nellore and by this conduct of the appellant, he should be deemed to have condoned the alleged lapses of the respondent, if any. It is contended that the resumption of conjugal relationship by the husband with the wife who has been charged with adultery would amount to condonation. Reliance is placed by the respondent on the decision in Ananthanarayanan v. Meenamani Ammal (1959) 1 M.L.J. 157 where Panchapakesa Ayyar, J., had expressed the view that the resumption of conjugal relations by the husband after the act of adultery by the wife would amount to condonation whatever the intention of the husband was, relying on the decision in Maslin v. Maslin (1952) 1 All. E.R. 477. In that case it has been held that such sexual intercourse between the husband and wife would amount to condonation even if the husband did not have sexual intercourse with the express object of effecting a reconciliation, but only to explore the possibilities of reconciliation. Rayden on Divorce (6th edition) at page 177 states as follows:

Condonation is the reinstatment in his or her former marital position of a spouse who has committed a matrimonial wrong of which all material facts are known to the other spouse, with the intention of forgiving and remitting the wrong, on condition that the spouse whose wrong is so condoned does not thenceforward commit any further matrimonial offence. Condonation therefore consists of a factum of reinstatement and an anumus remittendi.

According to the decision of the Court of Appeal in Perry v. Perry (1962) 1 A.E.R. 1076.

Though sexual intercourse was beyond doubt a most important incident in the marital relationship, an act, or two or three acts, of intercourse could not be regarded as proof of the resumption of marital relationship where a wife, though participating in such acts in all other respects repudiated the relationship.

The learned Counsel for the appellant, however, relies on the decision in De Ste Croix v. De Ste Croix A.I.R. 1918 Cal. 650 and Gopi v. Mt. Hiriya A.I.R. 1935 Nag. 49 in support of his contention that in order to amount to condonation there must be forgiveness followed by cohabitation and the condonation will arise only if the husband had restored the wife to status quo accompanied by cohabitation. According to the learned Counsel for the appellant a bare assertion of cohabitation should be regarded as ineffective to constitute condonation unless there is a bilateral intention on the part of both the spouses to set up a matrimonial home together. The learned Counsel also refers to the decision in Mummery v. Mummery (1942) All. E.R. 553 and also the decision in Ram Sarup v. Dev kumari A.I.R. 1950 P&h; 317 for the principle that a bilateral intention on the part of both the spouses to set up a matrimonial home together is necessary to constitute a mere cohabitation as condonation. But as pointed out by the learned Judges in Ram Sarup V. Dev Kumari A.I.R. 1950 P&h; 317 if there was sexual intercourse between the parties after the adultery on the part of one of the spouses is detected it is strong evidence unless explained. Having regard to the principles enunciated in the above decisions, the appellant's cohabitation with the respondent at Vizagapatam, Madras and Nellore after his knowledge of the alleged adultery cannot be ignored unless the appellant properly explains his conduct. In this case the appellant merely denies the factum of cohabitation and such denial is found to be untrue. The cohabitation stands unexplained. I am, therefore, of the view that there has beep a condonation by the appellant even if it is held that the appellant has succeeded in establishing his case of adultery against the respondent.

19. Point 5 : - On the question of the respondent's entitlement to any permanent alimony, I find that the lower Court has not considered this aspect, as no request for grant of such alimony was made before the lower Court. The respondent has filed an application for the grant of Rs. 500 per month as permanent alimony in C.M.P. No. 13832 of 1970 which claim is seriously resisted by the appellant. Section 25 of the Hindu Marriage Act provides that any Court exorcising jurisdiction under the 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 payment to the applicant for her or his maintenance a periodical sum having regard to the respondent's own income and other properties if any, as it may seem just and such payment may be secured, if necessary, by a charge on the immovable property of the respondent. It appears that by an interlocutory order in C.M.P. No. 6899 of 1966 this Court had directed payment of alimony at the rate of Rs. 150 per month pending disposal of the appeal. It is contended on behalf of the respondent that the sum of Rs. 150 per month which was being paid during the pendency of the above appeal is too meagre having regard to the income of the appellant. But it is urged on behalf of the appellant that even the sum of Rs. 150 per month is too much having regard to his income and his other obligations to the other members of the family. As I feel that the quantum of permanent alimony which the respondent will be entitled to cannot be decided without taking further evidence in the matter the proper course for the respondent is to move the lower Court under Section 25 of the Act for fixing a proper permanent alimony. I therefore order the continuance of payment of Rs. 150 per month as directed by this Court in C.M.P. No. 6899 of 1966 till the respondent gets the order modified by the lower Court under Section 25 of the Hindu Marriage Act. It is open to that Court to decide the quantum of alimony and the date from which it is payable. The application C.M.P. No. 13832 of 1970 is, therefore, ordered accordingly and the petitioner therein is given liberty to move the lower Court for fixing the permanent alimony under Section 25 of the Act.

20. The result is the civil miscellaneous appeal is dismissed with costs. Leave granted.

21. Before parting with the case, I have to state that the observations made by the lower Court in paragraph 27 of its judgment about the T.A. Bills and the diary maintained by the appellant seem to be unnecessary for the purpose of the case.


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