P.M. Bakshi vs Shikha Bakshi
1987 Latest Caselaw 532 Del

JUDGMENT

P.K. Bahri, J.

(1) This civil revision is directed against an order dated 11th July, 1986, of Shri S. M. Aggarwal, Additional District Judge, Delhi by which he had given a finding that Delhi courts have jurisdiction to try the suit brought by Smt. Shikha Bakshi for recovery of maintenance.

(2) The facts, in brief, leading to the filing of the petition are that parties were married in accordance with Hindu rites, admittedly, at Delhi in Rana Pratap Bagh. It is also not disputed that they resided together as husband and wife outside Delhi. The desertion of the plaintiff Smt. Shikha Bakshi also took place outside Delhi. She has sought recovery of Rs. 2,0001- per mensem as maintenance from her husband with effect from 1st October 1982, onwards.

(3) The suit has been contested by the petitioner-defendant, inter-alia, on the grounds that Delhi courts have no territorial jurisdiction to try the suit inasmuch as no part of the cause of action has arisen at Delhi and defendant-petitioner is also not resident of Delhi. Following preliminary issue was framed :-

1. Whether Delhi courts have territorial jurisdiction to try the suit ?

By the impugned order the learned Additional District Judge held that factum of marriage is part of the cause of action and thus Delhi courts territorial jurisdiction to try the suit.

(4) It is not disputed before me that under Section 20(c) of the Code of Civil Procedure Delhi courts would have jurisdiction to try the suit if a part of the cause of action has arisen within the territorial jurisdiction of Delhi courts. However, the learned counsel for the petitioner has vehemently argued that for filing the suit for grant of past and future maintenance against the husband the only cause of action which could be looked into is the factum of desertion by the husband of the wife and the fact regarding performance of marriage between the parties is not a part of the cause of action in respect of suit for grant of maintenance. There is fallacy in this argument. The expression "cause of action" has been defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. The cause of action has no relation whatsoever to the defense which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favor. It is obvious that in order to be entitled to the relief of maintenance from the husband, the wife has to allege and prove first that there has taken place valid marriage between the parties and husband has deserted the wife without any good reason. So, it cannot be urged with any rationality that in a suit for grant of maintenance brought by the wife against the husband, the factum of marriage is not part of the cause of action.

(5) In K. Vairavellu Mudaliar v. Rajalakshmi, , it has been clearly held that in a suit for maintenance the primary allegation that is required to be made in the plaint is that the parties were married and the maintenance will be asked on the basis of relationship between husband and wife. Hence, the marriage is, therefore, a fact which required to be proved before the other facts that may be urged in the plaint as to how and under what circumstances and in what events the wife had become entitled to be separately maintained. It was, hence, held that the fact of marriage would, therefore, form part of the cause of action and the place of marriage where part of cause of action arises would be a place where the suit could be instituted. This was a Single Judge judgment of the Madras High Court but I may also refer to a Division Bench judgment by the Allahabad High Court reported as Smt. Chandra Wati v. Lala Suraj Narain, . In this judgment also it was held that the liability of the husband to maintain the wife arises by reason of the marriage having been performed and the wife could bring her suit for maintenance within the jurisdiction of the court where the marriage was performed. In Subhash Chandre Jain v. Smt. Vidya Jain, , a Single Judge has come to the same conclusion after following the judgments given by the Madras High Court and the Allahabad High Court on this point mentioned above. I have not been made aware of any other judgment of any ether High Court or of this court taking a different view. On first principle, it is quite clear that the factum of marriage is an essential fact to be established by a wife, it traversed, before she could seek maintenance from the husband on the ground of desertion. So, the factum of marriage has to be treated as part of the cause of action and the courts within whose territorial jurisdiction the marriage has been performed would have the territorial jurisdiction to try the suit for maintenance brought by the wife against her husband.

(6) Counsel for the petitioner drew my attention to Section 20(a) & (b) but he forget that Section 20(c) is the provision which is applicable to the facts of the present case. The plaintiff has a choice of filing a suit in the courts mentioned in (a), (b) and (c) so, it cannot be argued that the court within whose territorial jurisdiction the cause of action wholly or in part arises would not be competent to decide the suit if the suit can be brought also on the places covered by clauses 20 (a) and 20 (b) of the Code of Civil Procedure.

In view of the above discussion, I conclude that Delhi courts have jurisdiction to try the present suit inasmuch as a part of the cause of action has arisen within the territorial jurisdiction of Delhi courts as the marriage between the parties was, admittedly, performed at Delhi. I find no merit in this revision petition, which I, hereby, dismiss with costs.