JITBANDHAN Vs. GULAB DEVI AND OTHERS

JUDGEMENT

(1.) This revision by the husband is directed against the order dated 14th and 16th July 1982 by which the District Judge, Darg has disallowed in execution the objection of the applicant that the order under Sec. 25 which of the Hindu Marriage Act, 1955 sought to be executed against him is without jurisdiction and, therefore, a nullity.

(2.) The facts briefly stated are that the husband filed a petition for a decree for divorce tinder the Hindu Marriage Act against the wife non-applicant No. 1. This petition was dismissed on 14th Aug. 1981 and on the same date the Court made an order under Sec. 25 of the Act directing that the wife will be entitled to receive Rs. 300.00 per month as maintenance for herself and her two children from the husband. It is this order made under Sec. 25 which was put in execution in which the husband took the plea that it was without jurisdiction.

(3.) There were two objections raised on the question of jurisdiction by the learned counsel for the husband. The first objection is that an order under Sec. 25 can be only "at the time of passing of decree or at any time subsequent thereto" which means that if the petition for obtaining a decree under the Act is dismissed no order under Sec. 25 for permanent alimony and maintenance can be made. The second objection is that jurisdiction under Sec. 25 arises only on an application made to the Court for that purpose by either the wife or the husband; and as no application under Sec. 25 was made by either of the parties, the Court had to jurisdiction to pass any order under that section. It is not in dispute that the petition for divorce made by the husband was dismissed. It is also not in dispute that no application under Sec. 25 was made by either party. In my opinion, both the objections raised by the learned counsel for the husband must be upheld. The words "at the time of passing any decree or at any time subsequent thereto" contemplate that the jurisdiction under Sec. 25 can be exercised only when the main petition is allowed and a decree as contemplated by Sections 9 to 13 is passed by the Court. For example, had the application for divorce been allowed, the Court would have been competent to pass an order under Sec. 25. The view that when the main petition is dismissed, the Court has no jurisdiction to pass any order under Sec. 25, is supported by a large number of authorities: ( Darahan Singh Vs. Daso, 1(1981) D.M.C. 210 , Gurcharan Kaur Vs. Ram Chand, A.I.R. 1979 Punjab & Haryana 206 ), Harilal Vs. Lilavati, (A.I.R. 1961 Giij. 202 ), Shantaram Vs. Hirabai, (A.I.R. 1962 Bom. 27) , Minarani Vs. Dasarath, A.I.R. 1963 Cal. 428) and Akasam Chinna Vs. Parbati, A.I.R. 1967 Orissa 162 . Further, the jurisdiction under Sec. 25 is attracted "on application made to it (Court) for that purpose by either the wife or the husband. In the absence of an application, the Court has no jurisdiction to pass an order under Sec. 25. On both the grounds urged by the learned counsel for the husband, it must be held that the order under Sec. 25 which is being executed by the non-applicants was an order without jurisdiction and hence a nullity. There was lack of jurisdiction in the instant case even according to the pure theory of jurisdiction which limits the defects of jurisdiction to the stage of commencement of proceedings. Such a defect arises when a authority is assumed under an ultra vires statute; (h) the Court or Tribunal is not properly constituted or is disqualified to act; (c) the subject-matter or the parties are such over which the Court or Tribunal has no authority to enquire and (d) there is want of essential preliminaries prescribed by the law for commencement of the enquiry (See Ujjam Bai Vs. State of Uttar Pradesh, (A.I.R 1962 S C. 1621, P. 1629) ; Bhupendra Singh Vs. G. K. Umati, (A.I.R. 1970 Madhya Pradesh 91, P. 96) . In the present case, the absence of decree under the Act and the absence of an application under Sec. 25 gave rise to want of essential preliminaries prescribed by the law for clothing the court with the jurisdiction to act under Sec. 25. This defect of jurisdiction made the order a nullity and so non-excutable.