SURENDRA SINGH CHAUHAN Vs. MAMTA CHOUHAN

JUDGEMENT

(1.) THIS is husband's appeal, filed under Section 28 of the Hindu Marriage Act, 1958 (hereinafter referred to as 'the Act') and is directed against the judgment and decree dated 30th April, 1984, passed by II Additional Judge to the Court of District Judge, Jabalpur in Civil Suit No. 31-A of 1983.

(2.) THE parties are legally married husband and wife and have a son born to them out of this wedlock. The appellant, in his application filed under Section 13 of the Act, prayed for a decree of divorce on the ground of cruelty and desertion by the respondent. It was alleged in the said application that the respondent is of a quarrelsome nature and lived with the appellant only for about 4 months in a period of 2-1/2 years. Even during this period, it was alleged, the respondent created problems by treating with cruelty the infant son and other members of the family. It was also alleged that the respondent once tried to throw the infant child into a well and also tried to burn herself. It was further alleged that she was, at the relevant time living with her in-laws and had thereby permanently brought the relationship to an end. The respondent, in her written-statement, admitted that she was the married wife of the appellant and a son was born out of the wedlock on 4-7-1979. She, however, denied that she was of quarrelsome nature or has treated any one with cruelty. She further alleged that on 21-6-1980 the appellant relations physically assaulted her and forced her to leave the house. The matter was also reported to the police. She therefore, claimed that she had neither done any thing to be guilty of cruelty nor had she deserted the appellant. According to her, she was forced to live separated because of the cruel behaviour of the appellant and the members of the family. In the written statement, she also submitted that she was entitled to maintenance for herself and her minor son under Section 25 of the Act. The learned trial Judge on consideration of oral and documentary evidence on record, held that the appellant has failed to prove his case of either cruelty or desertion. The learned Judge accepted the case set up by the respondent and concluded that the members of the appellant's family had physically thrown out the respondent from the house on 21-6-1980 and thereafter the appellant himself refused to permit her to stay in the house. On the aforesaid findings, the learned Judge felt that the respondent was entitled to maintenance under Section 25 of the Act and therefore, directed payment of Rs. 300/-per month as maintenance for herself and her minor child. It is this judgment and decree that is impugned in the present appeal.

(3.) AT the time of final hearing of the appeal, the learned counsel for the appellant did not challenge the findings recorded by the trial Court about cruelty and desertion and submitted that he challenged the impugned order only in so far as it grants maintenance under Section 25 of the Act. In view of the aforesaid, it is not considered necessary to examine the correctness of the findings recorded by the trial Court that the appellant has failed to prove his case of "cruelty" by the respondent. This finding is accordingly affirmed. Similarly, the finding of the trial Court that it was the appellant's family members who had forcibly thrown out the respondent from the house on 21-6-1980 is also affirmed. The submission of the learned counsel for the appellant is that the trial Court had no jurisdiction to grant maintenance under Section 25 of the Act, as no "decree" as contemplated under this provision has been passed by it. The argument is that dismissal of appellant's application for divorce does not amount to "passing any decree" within the meaning of this section. Reliance has been placed on a decision of this Court in Jitbandhan v. Gulab Devi, 1983 MPLJ (SN) 4. This decision is based on several decisions of other High Courts in the country. It is, therefore, submitted that according to the established law the trial Court, while dismissing the appellant's application for divorce, could not have passed an order under Section 25 of the Act. Learned counsel for the respondent, however, supported the impugned judgment and decree.