Anil K. Sen, J.
1. This is a revisional application at the instance of the defendant in Money Suit No. 23 of 1979 of the 4th Court of the learned Subordinate Judge at Alipore. The order impugned is one of October 8, 1982, passed by the learned Subordinate Judge deciding preliminary issue as to the jurisdiction of the Court in favour of the plaintiff. The respondent filed the aforesaid suit in the Court of the learned Subordinate Judge at Alipore claiming separate maintenance. Her simple case is that she was married to the petitioner at Delhi and she went over to United Kingdom to reside with her husband, the defendant, since the husband is a resident of the United Kingdom. She further pleaded that being deserted by the husband in the United Kingdom, she was compelled to come back to India and live separately at No. 15, Elgin Road, Calcutta within the jurisdiction of the learned Subordinate Judge. In such circumstances she claimed that she is entitled to separte maintenance and such maintenance not having been provided for by the husband she filed the suit. In pleading the jurisdiction of the Court where the suit had been filed she said 'That the cause of action for the suit arose on or about September, 1976 and is subsisting till the filing of the suit at premises No. 15, Elgin Road, Calcutta 20 within police station Bhowanipore in the District of 26-Parganas and within the jurisdiction of this Court where the plaintiff resides and where the defendant is liable to pay the plaintiff maintenance and also where the desertion of the defendant is continuing.'
2. The defendant husband appeared to contest the suit. A written statement having been filed he raised an objection that since he is residing beyond the jurisdiction of the Court and since the cause of action for the suit arose beyond such jurisdiction the learned Subordinate Judge had no jurisdiction to antertain the suit. A preliminary issue on the point of jurisdiction having been raised the learned Subordinate Judge proceeded to decide that by the order impugned. In deciding the issue in favour of the plaintiff the learned Subordinate Judge observed that as the plaintiff is at present residing at premises No. 15, Elgin Road within the jurisdiction of his Court, 'the defendant is liable to pay maintenance to the plaintiff at the place where she is residing and also where the alleged desertion by the defendant is continuing.' This is the order which is being impugned before us in the present revisional application.
3. Mr. Chatterjee, appearing in support of this revisional application, has strongly contended that even upon the pleading of the plaintiff the suit is not maintainable before the learned Subordinate Judge. According to Mr. Chatterjee, it is not so maintainable because the learned Subordinate Judge has no territorial jurisdiction as the defendant is residing outside the jurisdiction and the cause of action also arose beyond the jurisdiction. According to Mr. Chatterjee, the learned Subordinate Judge went wrong in thinking that non-payment of the maintenance is a part of the cause of action so that such non-payment at the separate residence of the wife can constitute a part of the cause of action for the suit. Reliance is placed by Mr. Chatterjee on an earlier Bench decision of the Madras High Court in the case of Ramalinga Iyer v. Jayalakshmi, AIR 1941 Madras 695 and a recent decision of a learned single Judge of the Madhya Pradesh High Court in the case of Sushilabai Rohani Prasad v. Rohani Prasad, (1982) 2 DMC 13. The point thus raised by Mr. Chatterjee has been seriously contested by Mr. Roy appearing on behalf of the plaintiff. Mr. Roy has relied upon provisions of Section 18 of the Hindu Adoption and Maintenance Act in contending that in view of the statutory obligation imposed by Section 18 non-fulfilment thereof is a part of the cause of action which necessarily arises in a case coming under Sub-section (2) of that section at the separate residence of the wife. According to Mr. Roy, the earlier decisions can be of no help in view of the statutory provisions of the Hindu Adoption and Maintenance Act.
4. We have carefully considered the rival contentions put forward before us.
It is not the plaintiffs case nor has it been contended by Mr. Roy appearing on her behalf that the jurisdiction of the learned Subordinate Judge can be invoked under any other clause of Section 20 of the Code of Civil Procedure other than clause (c) that is where a part of the cause of action arises. Therefore, the limited question which arises for our consideration in this case is as to whether upon the plaintiff's pleading any part of her cause of action arises at premises No. 15, Elgin Road, Calcutta within the jurisdiction of the learned Subordinate Judge. We regret that we have to answer this question against the plaintiff. It is settled now that cause of action means every fact which it would be necessary for the plaintiff to prove if traversed in order to support her right to the judgment of the Court. Admittedly in the present case the plaintiff has filed the suit claiming the right for a judgment awarding her separate maintenance. The right to claim maintenance necessarily arises on her marriage to the defendant/husband. Her further right to claim such maintenance by way of a separate maintenance arises as and when she proves desertion by the husband as one of the grounds specified in Section 18(2) of the Hindu Adoption and Maintenance Act. Therefore, in order to be entitled to a judgment of the Court on her claim she has to establish her marriage with the defendant husband and desertion by the defendant. Nonpayment of the maintenance itself need not be proved in order to get a judgment because that may be the defence to her suit by the husband. Therefore, the learned Subordinate Judge was not right in thinking that non-payment of the maintenance which is required to be paid at the separate residence of the wife which for the present is at premises No. 15, Elgin Road within the jurisdiction of the learned Subordinate Judge constitutes a part of the cause of action. The learned Sitbordinate Judge is also not right in thinking that continuance of desertion has to be established. The desertion having taken place admittedly at the United Kingdom the plaintiff wife continues to enjoy the right for separate maintenance as enjoined by Section 18.
5. Chief Justice Leach in the case of Ramalinga Iyer v. Jayalakshmi AIR 1941 Mad 695 clearly pointed out that in a case like the present one no part of the cause of action for non-payment of the separate maintenance can be said to arise at the place where the wife resides. The Chief Justice pointed out that the cause of action for such a suit arises because the husband has maltreated his wife to such a degree the she cannot live with him any longer. Thus, the maltreatment or the desertion constitutes a part of the cause of action where the claim is a claim for separate maintenance, the right to the maintenance having arisen out of the marriage. Similar view was taken by the Madras and Allahabad High Courts in some other decisions cited by Mr. Chatterjee as also by Madhya Pradesh High Court in the decision we have referred to hereinbefore. Though Mr. Roy has contended that these decisions are distinguishable on the ground that they were based on the law prior to its codification under the Hindu Adoption and Maintenance Act, but in our opinion, these decisions cannot be distinguished on that ground because the Hindu Adoption and Maintenance Act only granted statutory recognition to what otherwise was the law applicable to the Hindus. The character of the liability has not materially changed when it had been incorporated in Section 18 of the Hindu Adoption and Maintenance Act corresponding to Section 2 of Hindu Married Women's Rights to Separate Residence and Maintenance Act (since repealed). In this view we accept the contention of Mr. Chatterjee that upon the plaint case itself the learned Subordinate Judge had no jurisdiction to entertain the suit as the defendant does not live within his jurisdiction and no part of the cause of action arose within the said jurisdiction.
6. The revisional application, there-lore, succeeds on contest. In impugned order being set aside we decide the preliminary issue against the plaintiff and direct that the plaint be returned to the plaintiff in terms of Order 7, Rule 10A of the Code of Civil Procedure.
S.N. Sanyal, J.
7. I agree.