VIVEK RASTOGI Vs. ARCHANA RASTOGI

JUDGEMENT

(1.) This Appeal has been filed against the Judgment dated 3.4.2008 passed by the learned Single Judge granting interim maintenance in a suit filed by the Respondent/Wife in her Suit under Sections 18, 20 and 23 of the Hindu Adoptions and Maintenance Act, 1956 ('HAM Act' for short). By the impugned Judgment, the learned Single Judge has directed the Appellant/husband to pay interim maintenance at Rupees one lakh per month, subject to the Respondent/Wife vacating the house allotted to the Husband by his employer. The Court took notice of the fact that spouses owned a Flat addressed as Flat No. 702, Block No. A-3, Uniworld Citi, Gurgaon and another addressed as 102/46, Silver Oaks, DLF Phase-II. It was in this regard that the Respondent/Wife was granted the choice of residing in either of the two Flats; the Appellant/Husband was obligated to get the house chosen by the Respondent/Wife repaired/whitewashed etc. The Respondent/Wife was obligated to carry all his articles and belongings which were not owned by the Husband's Employer. The Court ordered that if the Respondent/Wife declined to shift to any of the two jointly owned flats, "she may take on rent any other house suitable to her and pay rent out of the maintenance, payable to her". The Wife has vacated accommodation provided by the Husband's Employer and hence enjoying interim maintenance from the date on which she vacated the said property.

(2.) Two questions arise for our consideration. Firstly, whether this Court possesses territorial jurisdiction to entertain the suit; and secondly whether the impugned Judgment calls for interference. So far as the first issue is concerned, the parties married to each other in New Delhi. They, however, last resided together in Gurgaon where the Respondent/Wife avowedly maintains her residence. We have already recorded that the Suit has been filed under sundry provisions of HAM Act; there is no reference, whatsoever, to the Hindu Marriage Act, 1955 ('HM Act' for short). In response to the Objection to the exercise of territorial jurisdiction by Courts in Delhi, Ms. Geeta Luthra, learned Senior Counsel for the Respondent/Wife argues that since the marriage was solemnized in Delhi, Courts located in Delhi would possess territorial jurisdiction to decide all disputes between spouses. Admittedly, a Suit for Partition has been filed by the Respondent/Wife in Gurgaon, where it is being presently adjudicated. Apart from the immovable properties mentioned above, it appears that the Wife/Respondent has ownership of a parcel of land in hi-tech city Ghaziabad. He, however, does not own any property in Delhi and does not reside in Delhi. According to the Appellant/Husband, he lost his employment because the Wife had refused to deliver back the possession of the company house, even after he was transferred. It is not denied that he is presently working as a Consultant in Pune where he is also residing. Our attention has been drawn to Single Bench decisions where the provisions of Section 20 of the Code of Civil Procedure, 1908 ('CPC' for short) have been pressed into service for determining which Court is competent to exercise jurisdiction in the context of territoriality. In Darika Bhatia v. V.L. Bhatia, 2005 119 DLT 518 an unmarried daughter had made the claim against her father which is also the position in Alisha Chaudhary v. Tarun Chaudhary, 2009 110 DRJ 544. Our learned Brother, Pradeep Nandrajog, J. has noted in Darika that the marriage of the parents of the plaintiff is wholly irrelevant to an inquiry for maintenance by the daughter since the father was not residing in Delhi; the daughter was residing in Gurgaon, having taken possession of the flat situated there pursuant to a settlement between her parents. The Plaint was directed to be returned to the daughter for permitting her to file it in a Court of competent jurisdiction. In Alisha, the Court again applied Section 20 of HAM Act. It kept in view the fact that the Defendant, at the time of commencement of the suit, actually and voluntarily resided in Delhi and, therefore, the suit was held to be entertainable by Courts in Delhi.

(3.) Section 19 of the HM Act stipulates that every petition under that Act shall be presented to the District Judge within the local limits of whose ordinary civil jurisdiction (i) the marriage was solemnized or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or (iv) where the petitioner is residing at the time of the presentation of the petition in a case where the respondent is, at that time, residing outside the territories, or has not been heard of as being alive for a period of seven years or more. The HM Act amends and codifies the enactments relating to marriage amongst Hindus. Section 24 thereof contemplates the grant of pendente lite maintenance and Section 25 pertains to permanent alimony and maintenance. It is manifest that an enquiry into whether a spouse should be granted maintenance, pendente lite or permanent, is clearly postulated by this Act. It is axiomatic that the provisions of the HM Act come into operation only once a petition for divorce or restitution of conjugal rights is filed thereunder. One important factor is that a nominal fixed fee is payable for seeking relief under the HM Act, whereas a substantial ad valorem Court Fee must be affixed on a plaint for maintenance under the HAM Act. The claim for maintenance by a deserted wife would not lie under the HM Act. This right is enshrined and is available under Section 18 of the HAM Act. Unlike the HM Act, the HAM Act is totally silent on the question of jurisdiction. It seems to us that there is no warrant to compel a spouse to petition for a divorce in order to claim maintenance as a precondition to seeking succor through the provisions of Section 19 of the HM Act. In so doing, we do not ignore the general law, that is, the CPC.