Shri Krishan Lal vs Smt. Sudershan Kumari and others

Prem Chand Jain, J.—Krishan Lal has filed this revision petition against the order of the learned Additional District Judge, Ambala, dated 31st July, 1974, by, which respondents 2 and 3 were allowed a monthly allowance in the sum of Rs. 75/- each from the petitioner.

In order to appreciate the controversy raised before me, the brief facts of this case may be noticed.

Shrimati Sudershan Kumari filed a petition under Sections 18 and 29 of the Hindu Adoptions & Maintenance Act, 1956 (hereinafter referred to as the Act) claiming a sum of Rs. 350/- per month as maintenance allowance from the petitioner. Shrimati Sudarshan Kumari was married to the petitioner in September, 1962. After some time their relations became strained, with the result that the petitioner filed an application u/s 9 of the Hindu Marriage Act for the restitution of conjugal rights. In that application a decree was passed by the Additional District Judge, Ambala, on 4th January, 1966, in favour of the petitioner. After the passing of the decree for restitution of conjugal rights, respondent No. 1 come to live with the petitioner, but again she had to leave his house on 16th July, 1966. The petitioner then filed an application u/s 10 of the Hindu Marriage Act but that application of his did not succeed. Therefore,, a petition was filed on 28th November, 1973, by the respondents, praying that they may be allowed maintenance allowance in accordance with the provisions of sections 18 and 20 of the Act.

The petition was contested by the petitioner on various grounds On the pleadings of the parties, the following issues were framed:--

Whether this Court has jurisdiction to entertain and try the petition ?

Whether the petitioner is entitled to any maintenance and if so, how much ?

Whether the petition is properly valued for purposes of Court-fee and what is the effect of not making any averment regarding the point of court fee in the petition ?

Relief.

On the basis of the arguments advanced on either side, issue No. 1 was decided against the petitioner. On issue No. 2 it was held that respondents 2 and 3 were entitled to maintenance. Issue No. 3 was decided against the petitioner. Accordingly, as earlier observed, an order allowing maintenance in the sum of Rs. 75/- each was passed in favour of respondents 2 and 3.

The only contention raised before me by the learned counsel for the petitioner was that the learned Additional District Judge had no jurisdiction to entertain a petition under Sections 18 and 20 of the Act for the grant of maintenance and that such a petition legally did not lie before him. The precise contention of Mr. Mittal was that the respondents should have filed regular suit in the ordinary Court of law and that under the Act there is no provision under which a petition for the grant of maintenance could be filed by the respondents.

After hearing the learned counsel for the parties I am of the view that there is considerable force in the contention of the learned counsel for the petitioner. When a similar objection was raised under issue No. 1 before the learned Additional District Judge the same was repelled thus:--

Faced with this situation, another objection was raised by Mr. B.B. Gupta that since no forum of filing a petition of the present nature has been prescribed under the Hindu Adoptions and Maintenance Act, 1956, the matter could be agitated in a Civil Court and this petition could only be filed by the petitioners in the Court of Subordinate Judge, so that the respondent could not be deprived of right of appeal against his decision to the District Court. J do agree that no forum has been specified in the above Act, but that does not mean that the matter can be agitated only in a Subordinate Court. In fact all matters pertaining to dissolution of marriage and restitution of conjugal rights are exclusively triable by the District Judge On the same analogy it can safely be held that this petition could be agitated in the Court of District Judge and not in the Subordinate Court. This objection is, therefore, without substance and cannot be taken into account.

From the aforesaid observations, it is abundantly clear that even the learned Additional District Judge accepted that under the Act no forum had been provided for filing an application for grant of maintenance. However, the jurisdiction was assumed by the learned Additional District Judge on the ground that as all matters pertaining to dissolution of marriage and restitution of conjugal rights were exclusively triable by the District Judge, then on the same analogy a petition under Sections 18 and 20 of the Act could also be entertained and disposed of by him. In my view, this approach of the learned Additional District Judge is illegal and untenable. The Hindu Marriage Act has nothing to do with the provisions of the Act. Under the Hindu Marriage Act the Legislature has provided a forum for filing petitions under that Act. I fail to understand as to how the provision under that Act providing a forum for the filing of the petition could by analogy give jurisdiction to the Additional District Judge to entertain an application for the grant of maintenance allowance under Sections 18 and 20 of the Act, when the Legislature in its wisdom did not provide for such a forum. Sections 18 and 20 of the Act give a right to the persons mentioned in those sections to claim maintenance. Mr. Mittal was justified in contending that as no forum had been provided under the Act, the only remedy available to the respondents was to have had recourse to the Civil Court for the relief prayed for by them in the petition Feeling the force of the contention of Mr. Mittal, Mr. H.L. Sarin, Senior Advocate, learned counsel for the respondents, pressed into service the provisions of sections 21 of the CPC and submitted that no objection having been taken about the jurisdiction of the Court, the same could not be permitted to be taken at this stage. This contention of his, on the face of it, appears to be of despair. A specific objection with regard to jurisdiction has been taken by the petitioner and an issue in that respect has been framed. As a result of my aforesaid discussion, I hold that the learned Additional District Judge had no jurisdiction to grant maintenance to respondents 2 and 3 on the petition that was filed under Sections 18 and 20 of the Act.

No other point was urged on either side.

For the reasons recorded above I allow this revision petition and set aside the order of the learned Additional District Judge, dated 31st July, 1974. In the circumstances of the case, I make no order as to costs.