M GOMATHI Vs. S NATARAJAN

JUDGEMENT

(1.) THIS petition is filed by the wife against the order of the Second Additional City civil Judge on appeal from the order passed by the Sixth Assistant City Civil Judge, holding that the trial Court should first decide the question of jurisdiction before it could pass any order on an interlocutory application for payment of interim maintenance.

(2.) THE wife filed a petition under the Hindu Marriage Act 1955 for judicial separation on the grounds of cruelty and desertion. Pending disposal of the petition the wife also prayed for interim maintenance which was ordered. The husband submitted that the Court had no jurisdiction as the case did not fall under section 19 of the Hindu Marriage Act in that the marriage was neither solemnized nor the husband and wife reside or last resided together within the jurisdiction of the City Civil Court. The lower appellate Court found that this question as to jurisdiction will have to be tried first and before the question is tried and the Court is satisfied that it has jurisdiction it cannot proceed to direct payment of interim maintenance. The wife has challenged the correctness of this order in this revision petition.

(3.) IT is contended on behalf of the wife that by his conduct the husband had allowed the proceedings with regard to grant of interim maintenance to go on and therefore he should not be permitted to raise the question of jurisdiction before payment of interim maintenance as directed by the Court. If it is found that the court has no jurisdiction to maintain the petition for judicial separation, it will obviously not have jurisdiction to try the question as to interim maintenance. To this extent the order of the appellate Court is beyond reproach. 3-A. In order to decide the question as to whether there is a triable issue or not regarding jurisdiction certain facts and question of law will have to be considered. On the facts it is not disputed, by the husband, that he is not residing within the jurisdiction of the City Civil Court. We may, therefore, proceed on the basis that the defendant in the petition is residing within the jurisdiction of the City Civil court. Section 19 of the Hindu Marriage Act provides-