Amarjit Singh Dhiman vs Smt. Sukhwinder kaur

Gokal Chand Mital, J.—The husband obtained a decree of divorce from the Court of Additional District Judge, Ludhiana, on 17-10-1981. Thereafter, the divorced wife filed a petition u/s 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for the grant of permanent alimony at the rate of Rs. 300/- per month. This petition was presented to the Subordinate Judge at Samrala. It was pleaded that her former husband was employed in the Punjabi University, Patiala, and his total earnings were Rs. 1200/- per month. The former husband contested the petition and pleaded that he was earning Rs 500/- per month from the Punjabi University, Patiala, and denied if he was doing any part-time job elsewhere He further pleaded that the applicant was earning Rs. 600/- per month by sewing clothes and knitting pullovers and her application for the grant of maintenance u/s 125, Cr. P.C., was dismissed by the Criminal Court, which decision was upheld by the Appellate Court and, therefore, she was not entitled to permanent alimony The wife had pleaded that the marriage had taken place at Samrala and, therefore, the Samrala Court had jurisdiction to entertain the petition. The former husband in his written statement admitted that the marriage was solemnised at Samrala but pleaded that the Court had no jurisdiction to try the petition

On the contest of the parties, the following issues were framed:-

Whether the applicant is entitled to the permanent alimony as praised in the application ? OPP

Whether this Court has no jurisdiction to adjudicate the matter ? OPR

Relief

The parties led evidence on the issues and the Court below by order dated 25-4-1984, found that under order of the criminal Court the husband was paying Rs. 100/- per month to the two children and keeping in view his income and the aforesaid circumstance, it was ordered that he would pay Rs. 150/- per month as permanent alimony to the wife This is husband''s appeal.

The first point raised before me is that u/s 3(b) of the Act the District Court has been defined which means the principal civil Court of original jurisdiction and suck a Court is the Court of District Judge which includes the Courts of Additional District Judges. On this basis it is argued that u/s 19 of the Act, the petition had to be presented to the District Court and since the petition had been presented to a Subordinate Court it was not properly presented This matter is covered by issue No 2. Before the Court below, another argument was raised that application u/s 25 of the Act had to be presented to the Court which granted decree of divorce and to no other Court. This lasser argument was considered by the Court below and keeping in view my decision in Smt. Darshan Kaur v. Maleak Singh (1983) 85 P. L. R. 178. it was held that the petition could be presented to any Court which would have jurisdiction in view of Section 19 of the Act. The Court below held that since the marriage between the parties was admittedly solemnised at Samrala, that Court had the jurisdiction because in section the Court in whose jurisdiction, the marriage was solemnised, could entertain every petition under the Act. The argument, which is raised below me, was taken for the first time in the grounds of appeal in this Court and was not raised before the Court below. In the grounds of appeal, it is mentioned that even if the place where the marriage was solemnised, has to be taken into consideration for giving jurisdiction for presenting a petition u/s 25 of the Act, such petition has to be presented before the District Court of that place and could not be presented before the Subordinate Court as no notification was issued by the State Government authorising the Subordinate Courts to be the Courts of original jurisdiction for a petition u/s 25 of the Act. The learned Counsel for the Appellant was shown notification No 2190-J-58/23265 dated 20th/31st March, 1958, published in Punjab Government Gazette dated 11-4-1958, by which in exercise of powers u/s 3-(b) of the Act every Court of a Subordinate Judge 1st Class has been notified to be a District Court as having jurisdiction in respect of matters dealt with under the Hindu Marriage Act, 1955. Therefore, the Subordinate Judge 1st Class, Samrala, within whose jurisdiction the marriage was solemnised, had the jurisdiction to entertain the petition u/s 25 of the Act by virtue of section 19(i) read with the aforesaid notification. Hence, the petition was properly presented.

The other matter, whether the Court which decided the divorce petition, alone could have the jurisdiction, the decision of the Court below is well based in view of Smt. Darshan Keur''s case (supra). Accordingly, the finding of the Court below on issue No. 2 is upheld.

Adverting to issue No. 1, the husband had filed a petition u/s 9 of the Act for restitution of conjugal rights which was decreed. As the said decree was not satisfied, the wife sought divorce which was granted to her. The petition u/s 125 of the Cr. P. C. was filed by the wife and children before the decree of divorce was granted. In those proceedings, the husband''s case, was that he was prepared to have the wife whereas the wife was not prepared to join his company in spite of the decree of restitution of conjugal rights and since she was at fault, she should not be allowed maintenance. The plea prevailed is that Court and that is why she, was not granted maintenance in those proceedings. However, the matter would stand changed after the decree of divorce is granted and particularly in view of Section 25 of the Act in which a destitute wife after divorce is entitled to claim permanent alimony. The concept of the two provisions is also different. This matter was also considered by me on an earlier occasion in Baldev Singh v. Baljit Kaur (1982) H. L. R. 591. There, it was found as to under what circumstances the wife could be denied or granted permanent alimony. The facts, which we have in this case, do not stand in the way of the wife in getting permanent alimony. After divorce, the former husband cannot ask his former wife to stay with him By decree of divorce the we has been broken and now she is entitled as of right to stay away and at the same time to claim permanent alimony.

As regards the quantum, I am of the view that no case for interference is made out.

For the reasons recorded above, this appeal is devoid of merit and is dismissed without any order as to costs.