SHANTARAM DINKAR KARNIK Vs. MALTI SHANTARAM KARNIK

JUDGEMENT

(1.) THIS is an appeal by the husband against the order of the City Civil Court dismissing his petition for restitution of conjugal rights, and granting alimony to the wife at the rate of Rs. 40/- per month. The petition was made under the provisions of the Hindu Marriage Act, 1955, and the ground upon which it was based was that in spite of repeated requests, the wife had refused to go and live with him in the written statement filed by the wife it was contended that she was constantly being ill-treated by her mother-in-law with the connivance of the husband and that she was ultimately driven out of the house. Accordingly, it was submitted that the husband's petition for restitution of conjugal rights be dismissed and that provision for her maintenance be ordered to be made. Both the wife as well as the husband led evidence in support of their respective contentions. The learned Judge, after considering the evidence and the other circumstances of the case held that the allegations made by the wife in her written statement were true, that she had every justification to refuse to go back and live with the husband and that, therefore, no decree for restitution of conjugal rights could be passed. Accordingly, the husband's petition was dismissed. While dismissing the petition, however, the learned Judge passed an order that the husband shall pay to the wife permanent alimony at the rate of Rs. 40/- per month. The husband then filed the present appeal in this Court challenging tha order of the learned Judge dismissing his petition as also the order granting alimony to the wife.

(2.) BEFORE dealing with the contentions in this appeal, it is necessary to set out a few more facts relating to the marital relations of the parties. The parties to the petition were married on 12th May 1952. After the marriage, they lived together for about three months, during which time, according to the wife, she was ill-treated both by the husband and his mother and eventually she was driven out of the house. In 1955 the husband presented a petition for nullity of marriage on the ground of impotency of the wife. In 1956, that petition was dismissed and an appeal to this Court against the dismissal of that petition was also dismissed. The husband was, however, ordered to pay the costs of that petition and of the appeal to the wife. The wife did not take any immediate proceeding for the purpose of recovering these costs, but in 1958, she sent a letter to the husband demanding payment thereof. In reply to this letter, the husband by his letter dated 4th August 1958 asked her to go back and live with him and not to harass him. The wife thought it to be a trick on the part of the husband to evade payment of the costs and 'accordingly, she did not go back and live with him, nor did she send any reply to that letter. The husband then sent another letter to the wife dated 12th September 1958 once again asking her to go and live with him. The wife did not send any reply to that letter either nor did she go to live with him. Eventually, the husband filed the present petition for restitution of conjugal fights on 7th November 1958. As already stated, the husband failed to prove any desertion on the part of the wife. On the contrary, the learned Judge held that he was gutlty of ill-treatment 'and cruelty to the wife and accordingly, his petition was dismissed and in addition he was ordered to pay Rs. 40/- per month as and by way of alimony to the wife.

(3.) MR. Gandhi in support of this appeal did not seriously contend that the order dismissing the husband's petition for restitution of conjugal rights was in any way bad. What he vehemently contended was that the learned Judge in this case had no jurisdiction under Section 25 (1) of the Hindu Marriage Act, 1955, to make an order for payment of alimony to the wife. According to Mr. Gandhi, the Court, may grant alimony under Section 25 (1) only in a case where any of the decrees specified in Sections 9 to 13 of the Hindu Marriage Act is passed. In other words, the Court would have jurisdiction under that Section to pass an order for alimony in favour of the wife or the husband, as the case may be, provided a decree for dissolution of marriage or for nullity of marriage or for judicial separation or for restitution of conjugal rights is passed. Such an order cannot be made where the petition for any of these reliefs is dismissed. Mr. Hemen-dra Saha, who was asked to appear amicus curiae contended that the expression "decree" as used in Section 25 (1) would include both a positive as well as a negative decree and that, therefore, the Court would have jurisdiction, to grant alimony to the husband or the wife, as the case may be, even where the petition for restitution of conjugal rights was dismissed. I am afraid, on a true construction of Section 35 (1), it is difficult to accept the contention of Mr. Shah. Sub-section (i) of Section 25 so far as it is material for the purpose of the present controversy is as follows: