Report No. 136

4.12.1. Whether an application claiming maintenance can be entertained only by the very court which has passed a decree or also by any other court exercising jurisdiction under section 19 of the Act?-

Another significant question arising under section 25 of the Hindu Marriage Act, 1955, and in respect of which there are conflicting decisions, is regarding the court to which an application for permanent alimony under the said section can be made. The Punjab & Haryana High Court1 has taken the view that even if in a petition seeking divorce or any other relief under the Act, a decree is passed by 'one' particular court having jurisdiction under section 19 of the Act, the opposite party can move 'any' court having jurisdiction under section 19 of the' Act in order to seek permanent alimony or maintenance, as the case may be. The High Court has supported the conclusion by the reasoning reflected in the following passage:-

"It is not disputed that the marriage of the parties was solemnised within the jurisdiction of District Court, Jullundur, both the parries 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 that matter any other section, should be read subject to section 19 so far as the jurisdiction of the Courts 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 for 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."

1. Darshan Kaur v. Malook Singh, AIR 1983 P&H 28.

4.12.2. A contrary view has been taken by the Bombay High Court1 which is of the view that section 19 will not apply to an application made under section 25, Hindu Marriage Act, 1955, and that no other court except the court passing the decree will have the jurisdiction to grant permanent alimony. Says the High Court:-

1. Jagdish v. Bhanumati, AIR 1983 Bom 297.

"The substantive matrimonial reliefs under the scheme of the Hindu Marriage Act are governed by sections 9 to 13B of the Act i.e. for restitution of conjugal rights, for judicial separation, for declaration of a void or voidable marriage for divorce on one of the several contingencies or for divorce by mutual consent. All these substantive reliefs under the Hindu Marriage Act are to be secured by presenting a petition before the Court of original jurisdiction as defined under section 19 of the Act. On the other hand, the applications which we have discussed above under sections 24, 25 and 26 are to be presented during the pendency of the main substantive proceeding.

The application for interim maintenance under section 24 has to be presented during the pendency of the petition for substantial matrimonial relief. So also application for custody of the child or for maintenance or education, is to be presented when the substantive petition for matrimonial relief is pending. The wordings of the opening sentences of sections 24 and 26 clearly show that the applications are to be presented in any proceeding under this Act. The wordings of section 25 are however slightly different. Section 25 reads in so far as it is relevant for purposes of this revision as follows:-

"25. (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."

Thus, the application under section 25 has to be presented to the Court exercising jurisdiction under this Act between the parties in respect of a substantial relief under the Act. The phraseology further shows that it is that Court which can pass an order either at the time of passing any decree for substantial relief or at any time subsequent thereto. It is further clear when the section says that such application has to be made to it i.e. referring to the Court exercising jurisdiction under this Act at the time of passing any decree or at any time subsequent thereto.

Even viewing the case from another angle, it would be seen that the proceedings under sections 24, 25 and 26 of the Hindu Marriage Act are consequential reliefs to the main or substantial reliefs arising out of the marriage petition. As far as sections 24 and 26 are concerned, there can be no dispute that they are to be filed during the pendency of the main proceedings for substantial relief. In so far as section 25 is concerned, permanent alimony is a consequential relief to the substantial relief of the determination of matrimonial rights between the parties.

The phrase clearly shows that the Court exercising jurisdiction at the time of passing of the decree or subsequent thereto on an application presented before it may pass an order granting relief of permanent alimony and maintenance. The object of the trainers appears to be that the Court having session of the matter relating to substantial relief is also given the jurisdiction to deal with the consequential relief of permanent alimony.".

The contrary view of the Punjab and Haryana High Court1 has been countered in the following manner:-

"A contrary view has been taken by the learned single Judge of Punjab and Haryana High Court in the matter of Smt. Darshan Kaur v. Malook Singh, AIR 1983 P&H 28. According to the learned Judge, section 19 of the Hindu Marriage Act is applicable to all proceedings including the application under section 25 of the Act as well. He disagreed with the argument that the phraseology of section 25, and in particular the words 'on application made to it for the purpose' referred to the court which passed the decree. According to him, this interpretation would lead to anomalous results.

I respectfully disagree with the said view, inasmuch as firstly the word "petition" in the Hindu Marriage Act is referred, only to those which are presented to the Court for substantial reliefs in respect of matrimonial relations inter se while the word "application" is used only for consequential reliefs of interim maintenance, permanent maintenance or for custody and maintenance of children.

Section 19 of the Act also refers to "petition" and, in my opinion, obviously to the petition of substantive reliefs covered by sections 9 to 13B of the Act. Further sections 24 and 26 from the very nature of the reliefs to be granted refer to the pending proceedings for the main relief and as such have to be filed and presented where the petition for substantive relief is pending.

So also section 25, which, in my opinion, is a consequential relief to be granted at the time of passing of any decree of substantive relief or at any time subsequent thereto, the application thereunder will have to be filed before the Court exercising the jurisdiction at the time of passing of any decree or subsequent thereto. Even the plain reading of the opening sentence of section 25 shows that the section itself fixes the forum for the relief of permanent alimony and maintenance to be the same Court which is exercising jurisdiction between the husband and wife at the time of passing of a decree for substantive matrimonial relief or any time subsequent thereto on an application made to it for the purpose."

1. Darshan Kaur v. Malook Singh, AIR 1983 P&H 28.