CHAMPAKLAL JAYANTILAL GADANI Vs. LATABEN CHAMPAKLAL GADANI

JUDGEMENT

(1.) HEARD learned Counsel. This first appeal filed by the husband, arises out of the proceedings which were held under the Hindu Marriage Act whereby a decree had been passed for dissolution of marriage on the basis of an earlier decree of judicial separation. By the judgment and award dated 29th October, 1999, the Judge, City Civil Court at Ahmedabad has allowed the Hindu Marriage Petition No. 366/96 as was filed by the husband. The marriage of the parties to the petition which was solemnised on 10th December, 1992, has been dissolved by the decree of divorce and the custody of the son has been allowed to be retained by the mother and that of the daughter with the father i.e. the present appellant who was original petitioner. This part of the decree is not contested by the present appellant.

(2.) WHAT is challenged before this Court is the later part of the decree whereby the Court has ordered that the wife and the son shall respectively get a sum of Rs. 2,000/ - per month, Rs. 1,200/ - per month towards the alimony and maintenance under Sections 25 and 26 of the Hindu Marriage Act from the date of the order i.e. 29th October, 1999, with a further condition that wife shall be entitled to move the Court in the event of defaults for three consecutive months on the part of the husband to pay the amount of permanent alimony and seek direction for getting the deduction from his salary directly. This part of the decree with regard to payment of permanent alimony and maintenance has been challenged on the ground that earlier an order had been passed by the Extra Assistant Judge, Kutchh at Bhuj in Hindu Marriage Petition No. 66/92 on5.8.1995,while granting the decree of judicial separation and accordingly the husband was already under an obligation to pay a sum of Rs. 700/ - per month against the permanent alimony under Section 25 and, therefore, any application under Section 25 for increase in the permanent alimony should have been moved before the Court of Extra Assistant Judge, Kutchh at Bhuj and not before the Court where the petition for dissolution of marriage was filed and decided. It has been submitted that in this back ground, the Court of City Civil, Judge at Ahmedabad had no jurisdiction to grant permanent alimony as has been ordered by him while passing the decree of dissolution of marriage. It has also been submitted that in view of the impugned judgment and decree dated 29th October, 1999, the appellant shall have to pay a sum of Rs. 700/ - per month as per the order dated 5th August, 1995 passed by the Court of Extra Assistant Judge, Kutchh at Bhuj and will also have to pay the amount as has been ordered by the Court of Civil Judge at Ahmedabad on 29th October, 1999. In support of this contention, learned Counsel for the appellant has also cited a decision of Bombay High Court in the case of Jagdish v. Bhanumati, reported in AIR 1983 Bom. page 297.

(3.) THE decision of the Bombay High Court (supra) on which the learned Counsel for the appellant has placed reliance is of no help to the appellant in the facts of the present case. Once the Court of City Civil Judge at Ahmedabad was seized with the petition filed by the husband himself merely because earlier order had been passed by the Court of Extra Assistant Judge Kutchh at Bhuj with regard to the permanent alimony, in the proceedings for judicial separation, it could not come in the way of Court of City Civil Judge, at Ahmedabad so as to enhance the amount of the permanent alimony and maintenance. The proceedings through Hindu Marriage Petition No. 66/ 92 had been initiated by the husband before the Court of Extra Assistant Judge, Kutchh at Bhuj and the proceedings before the Court of City Civil Judge at Ahmedabad were also initiated by the husband and, therefore, no useful purpose could be served by multiplicity of proceedings in different Courts, and if trie Court of City Civil Judge at Ahmedabad has passed an order with regard to enhancement of permanent alimony and maintenance, the same cannot be challenged on the ground that the wife should have moved the earlier Court of Extra Assistant Judge, Kutchh at Bhuj for enhancement. It is an admitted position that the wife is living at Ahmedabad where the marriage had been solemnised way back on 10th December, 1982, The petition for judicial separation had been filed by the husband before the Extra Assistant Judge, Kutchh at Bhuj because at that time he was serving at Gandhidham. At present both the parties are residing at Ahmedabad and the Petition No. 366/96 was also filed at Ahmedabad by the husband. In the facts of the case, it would be wholly unrealistic and burdensome to both the sides if they are asked to go to Kutchh Bhuj from Ahmedabad to enter into the third inning of litigation for alimony and maintenance when both are living at Ahmedabad where the marriage was solemnised and where the marriage was sought to be dissolved which has, in fact been dissolved. This Court fails to find any justification or wisdom in this self -inflicting hypertechnical objection raised on behalf of the appellant husband and the same is hereby rejected.