Karam Singh vs Daljit Kaur

Prem Chand Pandit, J.—This is an appeal by Karam Singh against the order of the learned Subordinate Judge, 1st Glass, Moga, granting the application of his wife, Shrimati Dal jit Kaur, u/s 25 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) and awarding Rs. 50 per mensem as maintenance to her till her remarriage or death.

The facts are not in dispute. It is common ground that the parties were married in 1949 and no child was born to them. The relations between them became strained and Shrimati Daljit Kaur had to file an application for maintenance against him u/s 488, Code of Criminal Procedure. After the filing of this application, Karam Singh applied for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955. It appears that both; these matters were compromised through the Panchayat and a decree was passed for restitution of conjugal rights on 17th June, 1960 and the application u/s 488, Code of Criminal Procedure, was withdrawn by the wife. According to the compromise, the husband had to go to the house of his in-laws and fetch his wife therefrom. The present application was filed by the wife on 17th November, 1960 on the allegations that her husband had not come to take her back. It was also stated that the Court had appointed Shri Jasbir Singh as a Local Commissioner to see that the husband came to the house of the wife''s father to fetch her. The Local Commissioner reached that house and waited for the husband for the whole night, but he never turned up. The husband had, thus, forsaken her without any reason whatsoever.

This application was contested by the husband on the ground that his wife was not entitled to any maintenance, because she had no intention to live with him. He further pleaded that he was attacked by his father-in-law and some other people and, therefore, he did not go to fetch her.

On the pleadings of the parties, the following issues were framed:

(1) Is not the application maintainable?

(2) To what amcnirit of maintenance the Petitioner is entitled?

(3) Relief.

The learned Subordinate Judge, came to the conclusion that the application u/s 25 of the Hindu Marriage Act was maintainable and Shrimati Daljit Kaur was entitled to maintenance at the rate of Rs. 50 per mensem from 17th November, 1960, when the application was filed, till her death or remarriage. Against this order, the husband has filed the present appeal.

Learned Counsel for the Appellant has challenged the finding of the Court below only on issue No. 1. He submitted that u/s 25 of the Act, maintenance could be granted only if a decree for divorce or judicial separation had been passed, because the words ''while the applicant remains unmarried'' Occurring in this section indicated that one of the stages when the maintenance would be stopped was the remarriage of the applicant and this was only possible if a decree for divorce or judicial separation had been granted in the case.

Admittedly, there is no decided cape on this point. Learned Counsel for the Appellant, however, tried to derive some support from a decision of Beaumount, C.J., in Mary Do Rozerio v. Ernest Do Rozario AIR 1941 Bom. 372, wherein it was observed that in a matrimonial suit the jurisdiction to allow alimony, which was another name for maintenance, only arose on the Court granting a decree for, judicial separation. The learned Judge went on to say that until the Court determined that it ought to grant a decree for judicial separation, no question of allowing alimony could arise. This case, however, does not apply to the facts of the present case and has been decided under a different Act. In Section 25 of the Act, it is not mentioned that an order under this section can only be passed if a decree either for judicial separation or for divorce was passed. The words "at the time of passing any decree" clearly indicated that the power to grant permanent maintenance could be exercised after the passing of a decree either for restitution of conjugal rights or for judicial separation or for divorce. The argument of the learned Counsel that the maintenance could be granted only when a decree for judicial separation or divorce was granted is without any merit, because the effect of the non-compliance with the decrees of judicial separation and restitution of conjugal rights is the same, as divorce can be granted after the expiry of a period of two years in both cases. It is only in those cases where a decree for divorce is granted that the marriage between the two spouses is dissolved immediately. There is, thus, no force in this submission.

Learned Counsel then contended that the decree for restitution of conjugal rights was obtained by the Appellant and, therefore, the Respondent could not make an application u/s 25 of the Act, because she had not obtained such a decree.

There is no force in this contention as well, because Section 25 clearly lays down that both the wife and the husband can make an application under this section when a decree has been passed under the Act. It does not matter at whose instance that decree had been obtained.

Lastly, it was submitted that the wife, if she wanted maintenance, could either take recourse to the provisions of Section 18 of the Hindu Adoption and Maintenance Act (No. 78 of 1958) or file a suit on the basis of the compromise, which resulted in the decree for restitution of conjugal rights.

There is no merit in this submission also, because when the Act provides her with a particular remedy, she cannot be debarred from availing of the same, even though other remedies might be open to her. There is nothing in the provisions of this Section to compel her to seek redress, in the first instance, under some other provisions of law.

No other point was urged before me.

The result is that this appeal fails and is dismissed with costs.