THEMMANENI SATTAYYA Vs. THEMMANENI AMMANNAMMA

JUDGEMENT

(1.) THE most important question that falls to be considered in this appeal, which arises out of a suit for maintenance, is as to whether the ordinary civil Courts have no jurisdiction to entertain such a suit, by a Hindu wife against her husband after the dismissal of a petition filed by the latter for restitution of conjugal rights, by reason of the provisions of Sections 4 and 25 of the Hindu Marriage Act sec. 25 (1) of tne Hindu Marriage Act empowers a Court exercising jurisdiction under that Act to pass an order directing payment of maintenance to either spouse at the time of passing any decree or at any time subsequent thereto ; while Sec. 4 (a) lays down that any text, rule or intepretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act, The word "decree" is not defined any where in the Act. There is no decision of our high Court on this question. But it was held by a Division Bench of the gujarat High Court in Harilai v. Lilavati, AIR 1961 Gujarat 202 that the words "at the time of passing any decree or at any time subsequent thereto" in sec. 25 mean ''at the time of passing any decree of the kind referred to in the earlier provisions of the Act and not at the time of dismissing the petition for any of the reliefs provided in those sections or any time subsequent thereto" and that the passing of an order of dismissal of a petition cannot be regarded as the passing of a decree within the meaning of that section. The same view was expressed by a Division Bench of the Calcutta High Court in Minarani v. Dasarath, AIR 1961 Calcutta 428 in which it was held that when the main petition (in that case a petition for divorce by the husband) is dismissed and no substantive relief is granted under sections 9 to 14, there is no passing of a "decree" as contemplated by Sec. 25 and the jurisdiction to make an order for maintenance under that section does not arise To the same effect is the decision of the bombay High Court in Shantaram v. Malti, AIR 1964 Bombay 83. Following these decisions, the learned trial Judge held that the expression 'decree occurring in Sec. 25 does not include an order of dismissal and that the defedant cannot consequently call in the aid the provisions of that section to question the jurisdiction of the ordinary civil Courts to entertain his wife's suit for maintenance as his petition for restitution of conjual rights was dismissed and not decreed.

(2.) LEARNED counsel for the appellant could not refer me to any decision extra in support of his contention that the expression 'any decree' employed in Sec 25 is intended to cover not only cases in which some relief is granted but also cases in which relief is denied. But he questioned the correctness of the decisions relied upon by the Court below on various grounds. He pointed out that the provisions of Sections 4 and 28 of the Act were not noticed by the learned Judges who rendered the decisions cited and contended inter alia that Sec. 28 would not have provided for an appeal against all decrees and orders made by the Court in any proceeding under the Act' if the term 'any decree' occurring in Sec. 25 was intended to cover only cases in which some relief is granted under any one of Sections 9 to 13 of the Act and not cases in which relief sought under those sections was negatived and the petitions dismissed. Having regard to the importance of the question as to whether the combined effect of Sections 4 and 25 of the hindu Marriage Act is to take away the jurisdiction os the ordinary civil courts to entertain a suit for maintenance by a Hindu wife against her husband, after the dismissal of a petition filed by the latter for restitution of conjugal rights; and the fact that the learned counsel seeks to challenge the correctness of the Bench decisions relied upon by the Court below, I am inclined to think that this is a fit case which can, with advantage, be posted before a Bench of two judges. This appeal may, therefore, be posted before a Bench of two judges, after obtaining the necessary orders of the Hon'ble The Chief Justice in this regard.

(3.) THE principal question that has to be answered in this appeal, which is referred to the Bench by one of us sitting alone, is as to whether the civil court has no jurisdiction to entertain a suit for maintenance by a Hindu wife against her husband after the dismissal of a petition by the latter for restitution of conjugal rights, in view of the provision of Sections 4 and 25 of the Hindu Marriage Act