Smt. Rathna Vs. M.P. Ramachandra - Court Judgment

G.C. Bharuka, J.

1. The present appeal filed under Section 19 of the Family Courts Act, 1984 (in short 'the Act') is directed against the order dated 29.1.1994 passed by the Family Court at Bangalore in OS 64/90 whereunder it has been held that the application filed by the appellant for maintenance cannot be entertained at Bangalore for want of jurisdiction.

2. It is not in dispute that, the appellant and respondents were married to each other on 25.12.1975 at Bangalore. Unfortunately, the marriage was dissolved by a decree of divorce in MC 44/94 passed by the Civil Judge, Mysore. Since in the said divorce proceedings the appellant had not claimed any maintenance, therefore, no. decree was passed to that effect.

3. Subsequently, the appellant along with her two minor daughters filed application before the Family Court at Bangalore claiming maintenance at Rs. 2,000/- p.m. from the date of institution of the suit and create a charge on the schedule properties with ancillary reliefs. But, the said application, so far as it relates to the appellant, has been rejected by the impugned order for alleged lack of jurisdiction on the part of the Family Court at Bangalore on the ground that, such an application for maintenance can be entertained only by the Court which has passed the decree of divorce i.e. the Civil Judge, Mysore.

4. We have heard the learned Counsel for the parties on the diverse views expressed by them at the Bar. In our opinion, the answer to the question canvassed lies on the reading of Section 19 and 25 of the Hindu Marriage Act, 1955 (in short 'the Marriage act') read with Section 7 of the Family Courts Act, 1984.

5. Section 19 and 25(1) of the Hindu Marriage Act reads as under :

'Section 19. Court to which petition shall be presented :- Every petition under this Act shall be presented to the District Court within the local limits to 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 is 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.

Section 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, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.'

5. Further, Section 7 of the Family Courts Act, 1984, to the extent it is relevant, reads thus :

Section 7 'Jurisdiction - (1) Subject to the other provisions of this Act, a Family Court shall -

(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceeding of the nature referred to in the explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation - The suits and proceedings referred to in this subsection are suits and proceedings of the following nature.

Namely :-

(a) xxx

(b) xxx

(c) xxx

(d) xxx

(e) xxx

(f) a suit or proceeding for maintenance;

(g) xxx

6. On a plain reading of Section 25 of the Marriage Act, makes it quite clear that, a Court competent to exercise jurisdiction thereunder may, in an application made to it by either the wife or the husband can direct for payment of maintenance, on fulfilling of the condition mentioned therein. Further, such an order for maintenance can be passed at the time of passing of a decree including that of divorce or at any time subsequent thereto as has been sought to be done in the present case. Therefore, Section 25, in turn, do not restrict the jurisdiction of entertaining an application for maintenance only by the Court passing any decree under the Act. Further, the Section in an unambiguous language provides that, an order for maintenance can be passed even at a stage subsequent to the passing of decree of divorce by any Court competent to exercise jurisdiction under the Marriage Act.

7. Therefore, what is material is, to find out as to which Court will have jurisdiction to pass an order under the Act. The answer has to be sought from reading Section 19 of the Marriage Act as quoted above. As per Section 19(i), a petition under the Act, which will naturally include the application under Section 25, can be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized. In the present case, admittedly, the marriage was solemnized at Bangalore and therefore, the District Court, as defined under Section 3(b) of the Marriage Act having jurisdiction over the territorial limits of Bangalore, has jurisdiction to entertain the application for payment of maintenance as envisaged under Section 25 of the Marriage Act.

8. Further, on reading of Section 7 of the Family Courts Act, 1984 as noticed above, it becomes abundantly clear that, the Family Court has been conferred with the jurisdiction to entertain all suits and proceedings including a suit or proceeding for maintenance in respect whore of the District Court has jurisdiction to entertain under the Marriage Act.

9. In the case of SMT. DARSHAN KAUR v. MALOOK SINGH, on a somewhat similar question pertaining to the jurisdiction of the Court to entertain a petition for permanent alimony subsequent to the passing of the decree of divorce, it was held that :

'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. 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 the 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 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.'

10. For the aforesaid reasons, we find the impugned order unsustainable. Accordingly, we set aside the same to the extent it has held that the petition filed by the present appellant is not maintainable.

11. Since the suit for maintenance is of the year 1990, therefore, the Family Court is directed to dispose of the impugned proceedings on a day-today basis within three months from the date of receipt of the present order and will not accede to any requests for adjournments of either of the parties.

12. Appeal is accordingly allowed with costs Lawyer's fee assessed at Rs. 500/-.