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1972 DIGILAW 200 (RAJ)

Purshotam Kewalia v. Devki

1972-09-26

KAN SINGH

body1972
KAN SINGH, J.—This is a husbands appeal directed against the judgment of the learned District Judge, Bikaner dated 25-2-70 whereby the learned Judge dismissed the husbands application under sec. 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 sec. 25 of Act. 2. The appellant Purshotam Kewalia and Smt. Devki respondent were married according to Hindu rites in July, 1937. At that time 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 husbands parents at Jaisalmer and at that time the husbands 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 there after without informing any one 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 wifes brother took her to husbands mother in the absence of the husband and the husbands mother was pressed to keep Devki with her, but the husbands 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 living in a rented house near the house of the husbands mother. 3. 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. 4. 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. The main ground taken by him was desertion for a continuous period exceeding two years before the presentation of the application. 4. 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 husbands application, but at the same time awarded permanent maintenance to the wife at the rate of Rs. 40/- per month. 5. Learned counsel for the appellant has raised a two-fold 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 jurisdiction to award permanent maintenance to the wife under sec. 25 of the Act once he had dismissed the application for judical separation 6. In a recent case Devi Singh vs. Smt. Sushila Devi(l), I had occasion to discuss the concept of desertion within the meaning of sec. 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 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 had not 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 to 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 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. 7. Now, I may turn to the further question whether the learned District Judge could have awarded permanent alimony to the wife while dismissing the husbands application for judicial separation. I may read section 25 omitting portions that are not material— "S. 25. Permanent alimony and maintenance. 7. Now, I may turn to the further question whether the learned District Judge could have awarded permanent alimony to the wife while dismissing the husbands application for judicial separation. I may read section 25 omitting portions that are not material— "S. 25. Permanent alimony 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 be 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 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 respondents 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 immovable 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 sec. 9, (2) for judicial separation vide sec. 19, (3) for divorce wide sec. 13 and (4) annulment of marriage which is void, secs. 11 and 12. Under sec. 9 Civil Procedure Code the term "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final and it shall be deemed to include the rejection of a plaint and the determination of any question within sec. 47 or 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. 47 or 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 before 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. 8. Where a suit has been dismissed after trial, such dismissal is a decree within the meaning of sec. 2 Civil Procedure Code, but dismissal of an application under the Act will not amount to a decree. Sec. 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. Sec. 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 sec. 25 of the Act. 9. The provisions of sec. 25 of the Act are analogous to the provisions of sec. 37 of the Indian Divorce Act. 10. In Devasakayam vs. Devamony (2) which was a case under the Indian Divorce Act, the learned Judges held that it was not competent to the court dismissing the husbands petition for dissolution of marriage to award maintenance to the wife under secs. 15 or 37 of the Indian Divorce Act. 11. The same view has been expressed in cases under the Hindu Marriage Act, in Shantaram Gopalshot vs. Hirabai(3) Kadia Harilal vs. Lilavati (4), Manarani vs. Dasarath(5) and Akasam Chinna vs. Parbati (6). It is the Gujarat case(4) 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 dismissing the application had awarded maintenance under sec. 25 of the Act to the wife. The learned Judges of the High Court observed— "The words "at the time of passing any decree or at any time subsequent thereto" in sec. 25 of the Act to the wife. The learned Judges of the High Court observed— "The words "at the time of passing any decree or at any time subsequent thereto" in sec. 25 mean at the time of passing any decree of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any of the reliefs provided in these sections of 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 permanent maintenance to the wife u/s. 25 of the Act while dismissing the husbands application for judicial separation. 12. In the result, I allow this appeal in part. While the order of the learned District Judge for the dismissal of the husbands 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.