Prem Chand Gupta vs Gita Devi
1995 Latest Caselaw 459 Del

JUDGMENT

R.C. Lahoti, J.

(1) This common order shall govern the disposal of CR. 656/88 and CR. 667/88, two revisions arising out of two orders passed at two stages of the same proceedings. In both the cases, the husband, who is non-applicant/defendant in the proceedings before the trial court, is the petitioner. The parties are Hindu spouse. Marriage between them was solemnized at Delhi. It appears that they had last resided at Rohtak. The District Judge, Rohtak passed an ex parte decree dated 11.5.1981 annulling the marriage on a petition preferred by the husband. Thereafter the wife initiated proceed ings under section 25 of the Hindu Marriage Act in the Court of the District judge Delhi. An application under section 24 of the Act was also filed. The husband look a preliminary objection to the territorial jurisdiction of the Court submitting that it was the Court at Rohtak alone which was competent to entertain the proceedings. By order dated 29.8.1988 the husband's objection to the territorial jurisdiction of the Court was overruled. The Court also directed litigation expense and maintenance pendente lite to be paid. On 15.9.88, the husband declared that he was not prepared to pay the arrears of maintenance in accordance with the order of the Court and hence the Court directed the defense of the husband to be struck off. Both these orders under the challenge.

(2) The question arising for decision is whether the Court at Delhi has jurisdiction to entertain an application under section 25 of the Act, though the earlier proceedings, culminating into a decree for annulment of marriage, were filed before and adjudicated upon by a decree by the court at Rohtak. The relevant provision of Section 25(1) reads as under : "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 an application made to it for the purpose by either the wife or the husband, as the case may, 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...." It is submitted by the counsel for the petitioner that the very fact that the Section speaks of order being passed by the Court "at the time of passing any decree or at any time subsequent thereto", an application under this Section would be maintainable only before the Court passing the decree though the Court may exercise power to award permanent alimony and maintenance at the time of passing of the decree or at any time subsequent thereto. Reliance has been placed on a Division Bench decision in Smt. S. Shyamuli Sarkar Vs. Ashim Kumar and a single bench decision in Jugdish Vs. Bhanumati .

(3) Having heard the counsel for the parties, this Court is of the opinion that both the revision petitions deserve to be dismissed. An application under Section 25 of the Act is maintainable before "any court exercising jurisdiction under this Act". The Court exercising jurisdiction under the Act has to be determined by reference to Section 19 of the Act, which reads as under : "19 Court to which petition shall be presented: Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil 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) the petitioner residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the. territories to which this Act extends, or has not been heard of as being alive, for a period of seven years or more by those persons who would naturally have heard of him if he were alive."

(4) It is interesting to note that before the amendment by the Act of 1976, this Section provided for every petition under the Act being presented to the District Court within the local limits of whose original jurisdiction either the marriage was solemnized or the couple resided or had resided together. By amendment the scope of Section 19 has been widened. Section 25 read with Section 19 contemplates an application under Section 25 being filed before any of the courts contemplated by clauses (i) to (iv) of Section 19 and not necessarily only before the Court passing any decree under the Act. The words at the time of passing any decree or at any time subsequent thereto speak only of the point of time at which relief under Section 25 of the Act may be sought for or allowed by the Court. If the argument of the Learned counsel for the petitioner was to be accepted, then one shall have to read the words "any court passing a decree under this Act" in place of "any court exercising jurisdiction under this Act". There is no warrant for reading in a narrow sense the words any court exercising jurisdiction under this Act. This inference stands reinforced by a comparative reading of the language of Section 25 with the language employed by the Parliament in drafting Sections 24, 26 and 27 where under jurisdiction can be exercised only by "a court seized of any proceedings under this Act".

(5) In Smt Darshan Kaur Vs. Malook Singh, also the view taken was that an application under Section 25 of the Act can be filed in a court other than the court passing the decree for divorce. I find myself in respectful agreement. with the view so taken.

(6) In so far as the order under Section 24 of the Act is concerned, it can certainly be passed in any proceedings under Section 25 of the Act. If a defendant/respondent does riot comply with an order under Section 24 of the Act, his defense can certainly be struck off

(7) No other point was urged.

(8) For the foregoing reasons, both the revisions are dismissed.

(9) One copy each of this order shall be placed on the record of two revisions.