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2010 DIGILAW 206 (CHH)

Mahadeo Thakre v. Chanchal Gaikwar

2010-08-31

PRASHANT KUMAR MISHRA

body2010
ORDER Prashant Kumar Mishra, J. 1. The applicant/husband is aggrieved by the order passed by the Additional District Judge, Gariaband, District Raipur, rejecting the applicant's objection regarding maintainability of the proceeding only under Section 27 of the Hindu Marriage Act, 1955 (henceforth 'the Act'). 2. The parties to this revision application were married on 7-5-1998. It is not in dispute that on the application preferred by the applicant/husband, an ex parte decree of divorce has been granted in his favour by the 5th Additional District Judge, Bilaspur, vide its judgment and decree dated 7-2-2002 in Civil Suit No. 115-A/2000. The non-applicant/wife, being ignorant of the said ex parte judgment and decree, moved applications, one under Section 13 of the Act on or about 20-7-2005 and another under Section 27 of the Act, both before the Principal Judge, Family Court (Additional District Judge), Raipur (Annexure P-1). However, when the applicant/husband disclosed the fact that the Bilaspur Court has already granted an ex parte judgment and decree in his favour, the applicant appears to have raised an objection regarding maintainability of the proceedings under Section 27 of the Act on the ground that since the non-applicant has withdrawn her prayer for grant of decree of divorce and has restricted the proceeding only for return of the property gifted to the couple at the time of marriage under the provisions of Section 27 of the Act, the proceedings is not maintainable. The Trial Court has rejected the said prayer of the applicant. 3. Learned Counsel for the applicant has raised two-fold arguments; firstly, that when the initial suit under Section 13 of the Act itself was not maintainable, prayer for return of property under Section 27 of the Act which is of an interim nature was not maintainable; secondly, that even if that application was maintainable, the Court at Gariaband has no jurisdiction to entertain the application, because by granting the application under Section 27 of the Act, the effect would be to amend or modify the decree of divorce granted by the Court at Bilaspur, which is not permissible. 4. 4. Learned Counsel for the non-applicant submitted that an application under Section 27 of the Act is maintainable, independent of the main proceedings under the Act and even if it has the effect of amending the decree, the proceedings is maintainable at the Court at Gariaband in view of the provisions contained in Section 19(iiia) of the Act. Learned Counsel also submits that in view of the scheme of the Act and the object for which Section 27 of the Act has been enacted, the application is maintainable as the wife cannot be compelled to move an application in the same Court, where the ex parte decree has been obtained. 5. Under the scheme of the Act, Section 23 provides for grant of a decree in any proceeding under the Act, be it a decree of judicial separation, restitution of conjugal rights or of divorce, Section 25 of the Act makes provision regarding permanent alimony and maintenance, whereas Section 26 of the Act speaks about custody of children and Section 27 makes provision regarding disposal of property. Sections 25, 26 and 27 of the Act give power to the Court to exercise jurisdiction under the Act to make a provision in the decree itself about permanent alimony, maintenance, custody of children and disposal of property. These provisions are, therefore, more often understood to be in the nature of incidental proceedings in the main proceedings. However, on reading of the scheme of the Act as well as the object for which these provisions have been made, it appears that application under Sections 25, 26 and 27 of the Act can be filed by any one of the spouse at or after passing of the decree. The question as to whether such independent application under Sections 25, 26 and 27 of the Act would lay before a Court which has not passed the original decree, but otherwise has the jurisdiction to deal with the application, is to be determined by considering overall scheme of the Act and the jurisdiction of the Court where such application is made. 6. Section 19 of the Act makes provision regarding the Court to which petition under the Act shall be presented. 6. Section 19 of the Act makes provision regarding the Court to which petition under the Act shall be presented. Under Clause (iiia) of Section 19 of the Act, it is provided that when the wife is the Petitioner, she can present the petition at the place where she is residing on the date of presentation of the petition. If an independent application under Section 27 of the Act is maintainable, at the place where the wife resides on the date of presentation of the petition, thus, the Court at Gariaband would have jurisdiction to entertain the application under Section 27 of the Act. 7. The question which now falls for consideration is whether the Court at Gariaband can pass an order which has the effect of amending the decree granted by the Court at Bilaspur. 8. In the matter of Smt. Darshan Kaur v. Malook Singh, AIR 1983 P&H 28, a Single Bench of the Court, facing somewhat similar situation arising out of proceeding under Section 25 of the Act, has held in Para 3 of the report thus: 3. A reading of Section 19 clearly shows that every petition under the Act (which will include a petition under Section 25 of the Act as well) has to be presented to the District Court within the local limits of whose ordinary original jurisdiction-- (i) the marriage was solemnized, or (ii) the Respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iv) (not concerned in this case). It is not disputed that the marriage of the parties was solemnised within the jurisdiction of District Court, Jullundur, both the parties are residing within the jurisdiction of District Court, Jullundur, although it is not clear as to where they last resided together. Therefore, it is clear that even for a petition under Section 25 of the Act, the Jullundur Court will have jurisdiction in this matter. Adverting to the phraseology of Section 25, stress is being laid on the words "on application made to it for the purpose". From these words, it is sought to be inferred that 'it' is the Court, which passed the decree, and that Court alone is entitled to entertain such application. Adverting to the phraseology of Section 25, stress is being laid on the words "on application made to it for the purpose". From these words, it is sought to be inferred that 'it' is the Court, which passed the decree, and that Court alone is entitled to entertain such application. If this interpretation were to be placed on these words, it will lead to anomalous results as would be clear from the following example. Suppose, a divorce petition is dismissed by the First Court and the dismissal is confirmed by the High Court and the matter goes to the Supreme Court and the Supreme Court grants a decree of divorce. The interpretation sought to be placed on Section 25 of the Act and on the word 'it', would mean that a petition for grant of permanent alimony under Section 25 of the Act will have to be filed before the Supreme Court. Similarly, if the divorce petition was declined by the First Court, but was granted by this Court, the application for the grant of permanent alimony will lie to this Court. This is not the scope of either Section 25 or conveyed by Section 19 of the Act. Moreover, the opening part of Section 25 shows that (he proceedings may be taken before 'any' Court exercising jurisdiction under this Act and the jurisdiction under this Act is exercised in view of Section 19 of the Act on matters arising under the Act. Therefore, the reasonable interpretation to be placed, would be that Section 25 or for the matter any other section, should be read subject to Section 19 so far as the jurisdiction of the Court is concerned unless there is a specific provision to the contrary in any particular section. Therefore, on a plain reading of Section 19 and reading it harmoniously with Section 25 of the Act, the only conclusion to be drawn would be that even if a petition for divorce, or any other decree, is granted by one of the Courts having jurisdiction under Section 19 of the Act, it may give cause to the opposite party to move for the grant of permanent alimony or any other relief under Section 26 or 27 of the Act, again the jurisdiction will be governed by Section 19 of the Act and not merely by the passing of a decree by a particular Court. 9. 9. Section 25 as well as Section 27 of the Act are reproduced hereunder: 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 by either the wife or the husband, as the case may be, order that the Respondent shall pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the Respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case, it may seem to the Court to be just, any such payment may be secured, if necessary, by a charge on the immovable property of the Respondent. (2) If the Court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under Sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the Court may deem just. (3) If the Court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the Court may deem just. 27. Disposal of property.-- In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. 10. Section 25 as well as Section 27 of the Act confer power on the Court to make provision regarding permanent alimony and maintenance and disposal of property at the time of passing of any decree under the Act. 11. This power is conferred to the Court 'having jurisdiction to entertain any petition under the Act in terms of Section 19 of the Act. 11. This power is conferred to the Court 'having jurisdiction to entertain any petition under the Act in terms of Section 19 of the Act. On perusal of the provisions contained in Section 19 of the Act, it would appear that Clause (iiia) of Section 19 of the Act was not provided under the original Act. It has been inserted by Act No. 50 of 2003 with effect from 23-12-2003. By inserting this new clause, the wife is also entitled to present any petition under the Act before the District Court within whose jurisdiction she is residing on the date of presentation of the petition. Thus, the intention of the Legislature is to enable the wife to present a petition under the Act in the District Court within whose jurisdiction she resides so that the lady is not made to travel and prefer a petition in a Court within whose jurisdiction she is not residing after the matrimonial cord has broken. There may be cases where the husband has obtained a decree in the place where he or both of them last resided and thereafter the wife has shifted to any other far off part of the country where her parental home is situated. Such place may be at a remote place in the country, therefore, compelling the wife to move an application under Section 25 or 27 of the Act in the Court which has passed the decree at the instance of the husband would amount to negating the pious intention of the Legislature while incorporating Clause (iiia) of Section 19 of the Act. Thus, on a conjoint and harmonious reading of Section 19(iiia) and Section 27 of the Act, this Court would conclude that the petition preferred by the wife under Section 27 of the Act in the Court at Gariaband, District Raipur is maintainable. 12. In the result, the civil revision fails and is hereby dismissed. There shall be no order as to costs.