Indira Sonti vs Suryanarayana Murty Sonti And ...
2001 Latest Caselaw 992 Del

JUDGMENT

A.K. Sikri, J.

1. The suit No.2075/2000 has been filed by the plaintiff under Section 18 of the Hindu Adoptions and Maintenance Act(for short 'Act') for decree for personal maintenance as well as for damages against her husband(defendant No.1) and father-in-law(defendant No.2) for allegedly ruining her life. It has been filed as indigent person. The plaintiff claims herself to be a helpless, poor, educated girl of middle class family who had dreamt of a happy married life. However, her dreams stand shattered and in the process she lost everything i.e. status, service, dignity and peace. It is also stated that her father was an Assistant Editor in Directorate of Extension under the Ministry of Agriculture, Government of India who retired on 31st May, 1994 and spend all his life savings on the marriage of his daughter i.e. plaintiff with the defendant No.1 in USA in the hope that she would lead a happy married life. The plaintiff is a post graduate diploma holder in management, a citizen of India and a Hindu by religion. She was holding a permanent post of Secretary in Tata Energy Research Institute(for short 'TERI') New Delhi and was about to be promoted when she was made to resign at the request of the defendants and on persuasion of the family members and also in view of her impending marriage and settlement in USA. On 14th April, 1999 the plaintiff along with her father went to USA and got married on 23rd April, 1999 before the Clerk of Peace Office, Wilmington, New Castle County, Delaware USA. On 25th April, 1999 in the Lord Venkateswara Temple, Pittsburgh, USA the wedding was solemnised/performed according to the Hindu traditions. According to the allegations made in the plaint the father of the plaintiff gave costly gits, jewellery and other valuables to the plaintiff. later on the same day i.e.25th April, 1999 the defendant No.1 told the plaintiff that in case she wanted to stay with him her father would have to pay more gifts and atleast Rs.10 lacs in cash. She tried to convince the defendant No.1 not to force her father to pay anything more as he was not in a position to pay Rs.10 lacs. On the same night at Pittsburgh, USA the defendant No.1 demanded divorce from the plaintiff for not co-operating with him and forcing her father to pay further fits and cash of atleast Rs.10 lacs. The plaintiff denied her consent for divorce. On 26th April, 1999 instead of going to the house of defendant No.1, the plaintiff and her father were taken to the house of her sister-in-law(Dr. Gayatri Sonti) in Bethlehem, Pennsylvania, USA, put up there and directed to return to India. All the requests of the plaintiff's father not to force him to give more gifts or cash were rejected by the defendants. The plaintiff and her father reluctantly booked a flight to New Delhi for 1st May, 1999. However, couple of hours before the departure from USA, the defendant no.1 visited the plaintiff and her father along with parents at Bethlehem USA and stated that he had reconsidered the matter and the plaintiff could life with him provided she sign five blank sheets and give the same to him. Little knowing that this was a strategy underlying the drama of reconciliation, the plaintiff signed five blank sheets and gave those to the defendants. Thereafter, the defendant No.1 and his parents took the plaintiff and her father to their home in newark, Delaware, USA. On 4th may, 1999 father of plaintiff came back to India. The defendant No.1 however again started demanding more gifts and money and subjected the plaintiff to all kinds of harassment. Suddenly on 8th May, 1999 the defendant No.1 told the plaintiff that their separation would commence from 12th May, 1999 and she could go anywhere she liked. The plaintiff was shocked to hear this as she was rendered penniless in a totally alien and foreign country. She was made to accompany her sister-in-law to her residence in bethlehem, USA. On 11th May, 1999 the plaintiff was taken by defendant No.2 and his wife to J.F.Kennedy Airport, New York, USA from where she flew to New Delhi at her own expense. Thereafter the plaintiff vide maintenance petition dated 6th June, 1999 approached the Family Court, Wilmington, Delaware, USA for maintenance. The plaintiff has stated in detail the events thereafter relating to the said petition, the gist whereof is that the court ha snot proceeded in the matter although acknowledging that plaintiff's maintenance petition and reminders were on record. This is what is summed up in para 35 of the plaint.

"That on the one hand the Family Court, Delaware stated that plaintiff's Maintenance Petition and reminders are on record and until and unless the Court received the Separation Notice, the Court cannot proceed further. On the other hand the defendant No.1 states that "in future I do not want you to write me any more letters either ordinary or certified. Family Court of Wilmington, Delaware USA will decide the course of action of our divorce, not you, me or anybody else". The plaintiff states that the aforesaid acts of the defendant no.1 amount to desertion by the defendant of the plaintiff and of the defendant having abandoned the plaintiff without reasonable cause as also of the defendant willfully neglecting the plaintiff."

2. Along with this suit. IA No.1559/2000 is filed for pendente lite maintenance at the rate of US $ 1200 or Rs. 51,600/- per month calculated at the then existing rate of Rs.43/-(approx.) per US $. The defendant No.1 has filed reply to this application contesting the right of the plaintiff to seek order for interim maintenance. Counsel for the parties made detailed submissions on this application.

3. Mr. V.P.Chaudhry, learned senior counsel appearing for defendant No.1 opposed the application on the following three grounds:

i) This court had no territorial jurisdiction to entertain the present suit filed by the plaintiff.

ii) Under Section 18 of the Act, no order for interim maintenance could be passed in view of the law laid down by Andhra Pradesh High Court in the case of Gorivelli Appanna Vs. Gorivelli Seethamma .

iii) On merits it was stated that the annual salary of the defendant No.1 was US $ 65000/- out of which he was paying taxes to the tune of US $ 20000/-. He was made to incur expenses on rent of the house, etc. amounting to US $ 36000/-, and therefore, the net amount left with him after all these expenses was only US $ 9000/- which was barely sufficient for his own survival and therefore he was not in a position to give any maintenance to the plaintiff.

4. In so far as the question of territorial jurisdiction is concerned, argument of learned senior counsel for defendants was that no cause of action has arisen in Delhi e.e. within the territorial jurisdiction of this court after marriage and therefore,t his court lacked jurisdiction to entertain the present suit. it was submitted that the defendant No.1 was not a resident of Delhi but was residing in USA. The marriage was also solemnised in USA and even the alleged cause of action as stated by the plaintiff relates to the events happened before the marriage. The petition for maintenance could be based on the cause of action after the marriage.

5. The plaintiff has made averments in para 48 of the plaint alleging part of cause of action having arisen in Delhi where plaintiff's father was approached by the defendant No.2 for marriage of the plaintiff with the defendant No.1 and discussion having taken place at New Delhi between the parties for marriage to be performed in USA. It is also stated that on 9th May, 1999 when defendant No.2 phoned plaintiff's father at New Delhi to inform that he was sending the plaintiff back to Delhi. He also asked for giving consent for divorce proceedings on phone to plaintiff's father at New Delhi.

6. While dealing with this application for grant of interim maintenance, it is not necessary to go into the question of territorial jurisdiction at this stage. Suffice is to state that this is a matter which is to be ultimately decided on the basis of evidence which would be led by the parties at the appropriate stage. However, it would be significant to point out that the Act is silent about the territorial jurisdiction. In the absence of any such specific provision in the Act, one can examine the question by falling back upon the provisions relating to territorial jurisdiction in Section 20 of CPC as well as Section 126 of Cr.P.C. dealing specifically with jurisdiction relating to maintenance cases. As per Section 20 CPC suit can be instituted where the defendants reside or cause of action arises. Interestingly claim for maintenance under the provisions of Code of Criminal Procedure, the Section 126 thereof makes a significant departure from the aforesaid rule contained in Section 20 of CPC. Section 20 of CPC by stipulating that the suit could be filed where the defendant resides is designed to secure that justice might be brought as near as possible to every man's hearth-stone and that the defendant should not be put up to the trouble and expense of traveling long distances in order to defend himself in cases in which he may be involved. (See: , Union of India & Anr. Vs. Sri Ladulal Jain) . This objective is given go-by in so far as application for maintenance under Section 125 of Code of Criminal Procedure is concerned. As per Section 126 of Code of Criminal Procedure, such petition can be filed where the applicant resides. The reason for enacting such a statutory provision is not far to seek. Application for maintenance is filed by persons, including wife, who are destitute and normally without any income. They are not able to maintain themselves of their own. That is why they are seeking maintenance from the opposite party. Therefore, it is the applicant, in such cases, who is to be given relief at a place nearer to his/her hearth-stone. In the case of Mst. Jagir Kaur and anr. Vs. Jaswant Singh , The Supreme Court observed that this Section should be construed liberally so that a helpless woman is not deprived of assistance from a court easily accessible to her. This view is followed by kerala High Court in the case of Purushothaman Vs. Mallika reported in 1989(1) Ker. Law Times 755. The moot question which therefore arises is as to whether the, in the absence of any such provision, in the Hindu Adoptions and Maintenance Act, principles contained in Section 126 of the Code of Criminal Procedure or Section 20 of CPC should govern such proceedings. no doubt application under Section 125 of Code of Criminal Procedure is part of Code of Criminal Procedure. however, fact remains that such proceedings under Section 125 of Code of criminal Procedure are almost in the nature of civil proceedings. The provisions of Chapter IX (Sections 125 to 128), which constitutes a complete code in itself, are not in the nature of penal provisions but are only intended for the enforcement of a duty in default which may lead to vagrancy. (See: 1963(1) Crl.Law Journal 131 Smt.Savithramma Vs. N.Ramanarasimhaiah).

7. It would be appropriate if the legislature steps in and enacts a specific provision relating to territorial jurisdiction in the matters of claiming maintenance under the Hindu Adoptions and Maintenance Act, in the Act itself, on the lines suggested by Section 126 of the Cr.P.C. Afterall, in cases of maintenance by destitute wife etc. the provisions contained in Section 126 of the Cr.P.C. are more in tune with the needs of society. Howeve,r in the absence of any provision in the Hindu Adoptions and Maintenance Act, whether the principles contained in Section 20 of CPC or the principles contained in Section 126 of Cr.P.C. would govern is a moot question which court will have to address itself at the appropriate stage. While interpreting the provisions of this nature, court would not remain mute spectator and can adopt a purposive approach which advances justice. However, it is not necessary to elaborate this point any further. As this aspect needs determination which raises important question of law, it would be appropriate not to decide the aspect of territorial jurisdiction at this stage. Even if the provisions of Section 20 CC are applicable, the case of the plaintiff is that part of action arose in Delhi. Therefore, ultimately evidence is required before this aspect is decided. For this reason also the question about jurisdiction is to be deferred to be decided at appropriate stage.

8. In so far as objection of the defendant No.1 to the grant of interim maintenance on the basis of is concerned it need not detain us for long. For, there is plethora of case law suggesting that during the pendency of the main suit under Section 18 of the Act, there is a right to claim interim maintenance. In the case of Tarani Gupta Chowdhury Vs. Sm.Gouri Gupta Chowdhury the Division Bench of Calcutta High Court held that the right of a wife to claim maintenance flows from Section 18 of the Act. If there is a general right to claim maintenance it follows that also during the pendency of the suit she has a right to claim maintenance. There is a right to claim maintenance because she is the wife. Secondly, the right to claim maintenance is begin asserted in the suit and thirdly there is a right to claim maintenance till the suit is determined and followed by decree. Likewise Gauhati High Court in the case of Arun Kumar Deb Vs. Smt.Himani Deb and Others. held that interim maintenance can be granted by the court in a maintenance suit by wife to enable her to sustain herself during pendency of suit. Power to grant maintenance under the Act includes power to grant interim maintenance also. In the case of Sivankutty Vs. S.Komalkumari & Ors. , it was held that interim maintenance can be granted inspire of lack of such provision under this Section or any other provision in the Act. Court cannot ignore long delay in final disposal of litigation and interim maintenance can be granted u/s 151 of Civil Procedure Code. Such power is implicit in the Section under the Act recognising right of maintenance of wife. (See also: 1. AIR 1983 Bombay 480, Madhukar Akhand Vs. Smt. Bhima Akhand and others.

2. 1987 (2) Hindu Law Reporter 550 (Orissa High Court) Govind Panigrahi Vs. Tarkeswari Panigrahi 3. Smt.Gouri Gupta Chaudhury Vs. Tarani Gupta Chaudhruy, 4. AIR 1975 Karnataka 17 K.Shankare Gowda Vs. Smt. S.Bharathi, 5. Baliram Ram Vs. Radhika Devi & Ors., 6. Deivasigamani Udaya Vs. Rajarani Ammal, 7. Smt.Neelam Malhotra Vs. Rajinder Malhotra & Ors. ). Most of the High Courts, including our High Court, have taken the view that interim maintenance can be granted under Section 18 of the Act. I see no reason to deviate from this view.

9. Calcutta High Court in the case of Jyoti Prakash Banerjee Vs. Chameli Banerjee and Anr. has specifically held that even when the suit is filed as a indigent person and application under Order XXXIII to sue as forma pauperis is pending, a suit stands instituted on filing such an application under Order XXXIII Rule 3 CC, and therefore, application for interim maintenance was maintainable and could be maintained even when the application to sue as forma pauperis was still not decided. Calcutta High Court relied on the judgment of Supreme Court in the case of Vijai Pratap Singh Vs. Dukh Haran Nath and Anr. while taking this view. Same view is taken by our own High Court also in the case of Smt.Gian Devi Vs. Shri Amar Nath Aggarwal Etc. reported in 2nd (1975) 1 Delhi 811 holding that an application for grant of interim maintenance during the pendency of a pauper application is an application for an interlocutory order and therefore, S.94(e) of Civil PC applies. There are no restrictions in the Code regarding the passing of such interlocutory orders. The same provisions of law apply to the pauper applications as apply to suits and hence order of interim maintenance can be passed pending pauper application. Therefore, the contention of the defendant No.1 to the extent that no interim maintenance can be granted at this stage, stands rejected.

10. Coming to the merits of the application, their main defense putforth by the defendant No.1 is that it is the plaintiff who deserted the defendant No.1 and came from her matrimonial home of her own seet will. In reply to this application the defendant No.1 has given his own version of the events that took place after the marriage between the parties. Put briefly, according to the defendant No.1, the plaintiff on 9th May, 1999 suddenly expressed her desire to go back to India and told the defendant No.1 that she was proposing to go back to India as the defendant No.1 and his family did not suit her and she would not be able to reconcile with them and their way of living. She had with her an open return ticket when she had come to India from USA and she availed the same while leaving for India. She took with her all belongings including her jewellery and stridhan. It would be significant to note that the marriage between the parties was solemnised on 23rd April, 1999. Why within ten days of the marriage the plaintiff would express her desire not to stay with her husband and come back to India, is not digestible. Prima facie, therefore, this stand of the defendant No.1 cannot be accepted. Afterall, the plaintiff had gone at the way from india to USA to get married to defendant No.1 was resident of USA and had settled thee. be as it may, this is again a question which would be determined after recording of evidence of both the parties and mere plea of this nature raised by the defendant No.1 in reply would not deter this court from passing an appropriate order for interim maintenance in favor of the destitute wife.

11. Relationship between the parties i.e. plaintiff and defendant No.1 being wife and husband is not in dispute. It is also not in dispute that the plaintiff is not living with her husband i.e. defendant No.1. Case of the plaintiff is that it is the defendant No.1 who has deserted her and created the circumstances under which she was forced to go back to India. It is also not disputed by the defendant No.1 that before marriage of the parties the plaintiff was having a confirmed and permanent job in TERI and she resigned from there to join the defendant No.1 in America. Today, she is without job and ocnsequnetly without any income. Although not relevant, but fact remains that her father also retired from his job way back in 1994. The duty of defendant No.1 as husband of the plaintiff to maintain her cannot be denied. The plaintiff has claimed maintenance at the rate of US $ 1200 per month on the ground that the defendant No.1 is earning salary of US $ 8000 per month approx. This is denied by the defendant No.1. in the reply as to what is his monthly salary, in para 7 of the reply as to what is his monthly salary, in para 7 of the reply the defendant No.1 has given the break-up of his expenses which is as follows:

In US-Dollars a. Income-tax other taxes 1500 b. Rent of the premises where the defendant No.1 is staying 1500 c. Expenses incurred on transport and maintenance of car including Insurance 1000 d. Expenses on food and clothing

12. However, at the time of argument learned senior counsel for defendant No.1 gave details of income and expenditure as already noted above. It is further stated that after meeting the aforesaid expenses the defendant No.1 is able to save about US $ 9000 only. However, no proof of the salary, income or the aforesaid expenses is furnished by the defendant No.1. On the other hand, learned counsel for the plaintiff relied upon various judgments to the effect that the wife should be entitled to 1/2rd of the husband's income as maintenance.(Judgments relied upon are: 1. , Maganbhai Chhotubhai Patel Vs. Maniben, 2. Baby Rashmi Mehra and Anr. Vs. Sunil Mehra and others. 3. Jasbir Kaur Sehgal(Smt.) Vs. District Judge, Dehradun and Ors.4. I (2001) DMC 57(SC), Shivani Chattopadhyaya Vs. Siddarth Chattopadhyaya.

13. Keeping in view all the aforesaid relevant aspects in question and even presuming that the version of defendant No.1 regarding his income and expenditure is correct, I am of the view that the plaintiff is entitled to US $ 400 per month as maintenance from the defendant No.1 inasmuch as even as per defendant No.1's own showing he is saving US $ 9000 per annum(US $ 750 per month) which is not saving after meeting all expenses and the plaintiff is to be awarded maintenance on the basis of the defendant No.1's income.

14. This IA is therefore disposed of with direction to the defendant No.1 to pay maintenance at the rate of US $ 400 per month to the plaintiff w.e.f. February, 2000 when this application was filed. Arrears of maintenance be paid within a period of two months. The defendant No.1 shall start paying future maintenance i.e. from August, 2001 by 10th of each month.