Amrik Singh Bhalla vs Lakhwinder Kaur

Gokal Chand Mital, J.—On 26th November, 1982, Smt. Lakhwinder Kaur filed an application u/s 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) for the grant of permanent alimony and maintenance against her husband Amrik Singh on the pleas that her petition for the dissolution of marriage u/s 13 of the Act was pending in the Court and since she was not having any movable or immovable property or any other source of income and whereas her husband was earning Rs. 1,000/- per month by working as a motor mechanic and was having additional income by plying a jeep on hire, the total monthly earning being Rs. 3,000/-, she claimed maintenance at the rate of Rs. 500/- per month.

The husband contested the petition and pleaded that the application of the wife u/s 13 of the Act has since been dismissed. The factum of marriage was admitted but it was pleaded that he had obtained a decree of divorce from Ganganagar Court in Rajasthan and that the said Court alone had jurisdiction and not the Amritsar Court. He also pleaded that he had monthly income of only Rs. 300/-.

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

Whether the present application is not maintainable ? O.P.A.

Whether the applicant is entitled to get the maintenance ? If so, at what rate and at what amount ? O.P.A.

Relief.

After evidence was led, the trial Court granted monthly maintenance of Rs. 150/- to the wife by order dated 12th January, 1984. It found under issue No. 1 that the husband had obtained an ex parte decree of divorce from a Court at Ganganagar which was not got set aside by the wife''s petition for divorce filed at Amritsar was dismissed on the basis of a decree of divorce passed by the Ganganagar Court. However it was held that the husband admitted that the wife had filed a petition for the grant of decree of judicial separation at Amritsar which petition was decreed by the Amritsar Court. In view of this admission of the husband, the Court held that u/s 25 of the Act, the Amritsar Court had jurisdiction to grant maintenance and repelled the objection of the husband. Under issue No. 2 it was held that the husband was a motor mechanic and the statement of the husband was that his income was Rs. 300/- or Rs. 400/ per month and from this it was concluded that he must be earning at least Rs. 450/- per month. Therefore, one-third of the said income was granted as monthly maintenance to the wife. This is husband''s appeal in this Court.

Shri M. L. Sarin, appearing for the husband, has ably argued that in the petition for the grant of maintenance or permanent alimony the only plea raised to give jurisdiction to the Amritsar Court was that the application of the wife for the grant of divorce was pending in that Court. But since that application was also dismissed on the date the application for the grant of maintenance u/s 25 of the Act was filed, that decision could not give jurisdiction to the Amritsar Court. Her petition was dismissed on the ground that divorce had already been granted by the Court at Ganganagar. Therefore, the Court where the wife''s petition was dismissed, will not have jurisdiction and the Court which granted decree and that too of divorce, alone would have jurisdiction. He further submitted that since the wife had not pleaded about the grant of decree of judicial separation by the Amritsar Court in her petition, no amount of evidence brought on the record can be looked into in the absence of pleadings.

While elaborating his argument, Shri Sarin brought to my notice the form No. I contained in the High Court Rules and Orders, Volume II, Chapter 1(E), page 19, which contains a column to specify about the proceedings between the parties which may give jurisdiction to the Court It is true that the wife only pleaded about the filing of divorce petition by her and not about the obtaining of a decree of judicial separation from the Amritsar Court. These forms only give broad guidelines for including the relevant material, but ultimately the case had to be decided on the material brought on the record circumscribed by law and the well established rule of practice and procedure. While it is true that no amount of evidence can be looked into on a matter which is not pleaded, it is equally true that certain matters which are admitted by both the parties and specially when they relate to judicial proceedings in Court, those admissions in certain circumstances can be relied upon even in the absence of specific plea in this behalf. For that matter no hard and fast rule can be laid and each case will have to be decided on its own facts. In this case, which is between the husband and wife, it has come in the statement of the husband that the wife had filed an earlier petition in the Amritsar Court for the grant of decree for judicial separation in which she was granted a decree. The relevant statement is as follows :--

The petitioner had brought a petition for judicial separation against me before I brought the petition for divorce against her. It is a fact that the said petition for judicial separation was allowed against me by the Court of Shri Malhotra.

The wife appeared as P.W. 3 and made the following statement:--

I brought a petition for judicial separation in a Court at Amritsar. The Court granted the decree in my favour.

In view of the aforesaid two statements of the parties, it is clearly shown that the wife had obtained a decree of judicial separation from the Amritsar Court and her failure to plead about it in the petition would Lot take away the jurisdiction of the Amritsar Court in the presence of the statements of the parties.

The next question would be whether the grant of a decree of judicial separation by the Amritsar Court would give jurisdiction to it to entertain a petition u/s 25 of the Act. In this behalf Shri Sarin has relied on a Single Bench decision of this Court in Gurcharan Kaur v. Ram Chand (1977) 81 P.L.R. 382, rendered by S. C. Mital, J., for the proposition that only on granting a decree of divorce, section 25 application would be maintainable and not on the grant of any other decree. This decision certainly supports the contention of Shri Sarin.

On the other hand, there is an earlier decision of P. C. Pandit, J. in Karam Singh v. Daljit Kaur ILR (1963) P&H. 574 which took the view that section 25 application can be filed by any spouse whether decree is of restitution of conjugal rights, or judicial separation or nullity or divorce. In view of certain conflict on this point, another case was referred to a Division Bench and the Division Bench consisting of P. C. Pandit and C. G. Suri, JJ., in Smt. Ram Piari Vs. Piara Lal P.C.S. Divisional Agricultural Officer, Patiala, approved of the decision of P. C. Pandit, J. and held that section 25 application could be granted to the wife not only on the grant of decree of divorce but also when the decree for restitution of conjugal rights or decree of judicial separation is granted. The decision of the Division Bench was not brought to the notice of S. C. Mittal, J. in Gurcharan Kaur''s case (supra). Reference was made to Durga Das Vs. Tara Rani, (Full Bench). In Durga Das''s case (supra) this point did not arise even remotely. The only point debated before the Full Bench was "whether a party to a decree of divorce can apply for maintenance under subsection (1) of section 25 of Act 25 of 1955 after such a decree has been granted ?" The answer was that even afterwards the wife could claim the maintenance. No point arose whether the wife, who has obtained a decree of judicial separation or against whom a decree of judicial separation has been passed, would be entitled to claim maintenance u/s 25 of the Act. Gurcharan Kaur''s case (supra) cannot be said to be laying down a good law in view of the Division Bench judgment in Smt. Ram Piari''s case (supra). I am bound by the Division Bench judgment and following the same, hold that since there is a decree of judicial separation between the parties from the Amritsar Court the said Court had jurisdiction to entertain the application u/s 25 of the Act.

In support of the decision of the Division Bench I wish to add my own reasons. Under the scheme of the Act, a wife has been allowed maintenance during the pendency of the proceedings under the Act whether u/s 9, 10, 12 or 13. This matter has already been extended by judicial decisions even during execution of the decrees. Section 26 of the Act permits the granting of maintenance and custody of children. Section 25 comes to the rescue of the wife from the date of termination of proceedings or thereafter. Therefore, the Scheme of the Act is that a destitute wife should be provided maintenance whether during pendency of the proceedings under the Act or on their conclusion, or any time thereafter. For this it would hardly matter whether the decree was under one section or the other because the basic idea is to provide maintenance to the wife even after the close of the proceedings. Even in section 25, the heading is ''Permanent Alimony and Maintenance''. Thereafter, it would be idle to contend that only on the grant of a decree of divorce or annulment, the wife would be entitled to claim maintenance for a period beyond conclusion of the proceedings and not when the proceedings are taken under other provisions of the Act.

The counsel for the wife urged that even if a petition u/s 9, 10, 12 or 13 of the Act is dismissed by a Court, the dismissal of the petition is also a decree and, therefore, the Amritsar Court, which dismissed the wife''s petition for divorce, amounts to a decree with the result that on the basis of the pleadings contained in the application, the Amritsar Court had the jurisdiction to grant maintenance u/s 25 of the Act. For this argument, reliance is placed on Ehakuntla Bhai v. Sahibrao Rama Rao Pawar (1978) 1 Bom. 127. The facts of this case are that the husband''s petition for divorce was dismissed during the pendency of which the wife was granted maintenance u/s 24 of the Act. After dismissal of divorce petition, the wife filed a petition u/s 25 and an argument was raised on behalf of the husband that maintenance could not be granted u/s 25 as there was no decree under the Act. The Division Bench ruled on the interpretation of various provisions of the Act that dismissal of a petition for divorce is also a decree and, therefore, the wife was entitled to claim maintenance u/s 25 and she was granted maintenance. The decision certainly supports the argument of the counsel for the wife to make the petition for the grant of maintenance u/s 25 of the Act maintainable in Amritsar court. Since the wife is succeeding on the basis of a decree of judicial separation to give jurisdiction to the Amritsar Court, I do not express any opinion on this matter.

Hence, both the points raised by the counsel for the husband are decided against him.

The last point argued was about the quantum of maintenance, The husband is a motor mechanic and has gone from Punjab to Rajasthan to earn as such. A motor mechanic would be earning much more than what has been found by the Court below. Even an unskilled labourer gets Rs. 15/- per day. Since there is no appeal by the wife, it would suffice to say that the grant of Rs. 150/- per month as maintenance to the wife is the bare minimum and no interference is called for.

For the reasons recorded above, this appeal is dismissed. Since the wife has been awarded litigation expenses, there will be no order as to costs.