SUSHILABAI ROHANI PRASAD Vs. ROHANI PRASAD

JUDGEMENT

(1.) APPELLANT No. 1 Sushilabai was married to respondent No. 1 rohani Prasad at Bamhani in district Narsimhapur. After about 2 or 3 years of the marriage, the relations between the married couple became strained resulting in suit for maintenance by the wife against the husband. Earlier, on two occasions, the proceedings brought before the Court at Narsimhapur were withdrawn. Some Panchayat was also held at Bamhani where the respondent No. 1 executed a writing in favour of appellant No. 1 that he has retained her ornaments. The respondent No. 1 resides at Kharkhari in Katni tahsil. After giving some details of the past conduct of the respondents and alleging in paragraph 5 of the plaint that the respondent no. 1 has neglected the appellant No. 1 and has refused to maintain her, the appellants brought the suit for separate maintenance. Charge of cruelty was also levelled against the respondents. Prayer in the suit was for payment of monthly maintenance and for return of her ornaments. It was claimed that a charge be created for maintenance over the properties shown in Schedule 'c of the plaint. It may be mentioned that all these properties are situate outside the territorial jurisdiction of the Narsimhapur Court. The objection raised by the respondents as to the territorial jurisdiction of the Court to try the suit has been upheld by the District Judge, Narsimhapur, before whom the suit was filed and by the impugned order, the plaint has been directed to be returned for proper presentation to proper Court. It is this order which has been challenged in this appeal.

(2.) IN the plaint, the jurisdiction of the Court at Narsimhapur to try the suit has been invoked firstly on the ground that the marriage was performed at Bamhani, a village admittedly lying within the territorial jurisdiction of that Court and, secondly, because in the Panchayat at Bamhani the respondent No. 1 has expressly agreed by writing, dated Chaitra Badi 12, samvat 2023, to maintain the appellant No. 1. Right of a Hindu wife and child to claim separate maintenance has since been codified by enactment of the Hindu Adoptions and Maintenance Act (No. 78 of 1956 ). Section 18 of this Act enumerates the ground on which a wife can claim maintenance, while section 20 provides for claim for maintenance by children and aged parents. Desertion, that is, abandoning the wife without reasonable cause and without her consent or against her wish, or wilfully neglecting her and treating her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband, are included as grounds entitling the wife to maintenance from her husband. All the same, this Act, unlike the Hindu Marriage Act, 1955, does not contain any provisions regarding jurisdiction of a Court for such a claim. The jurisdiction in case of a claim for maintenance in any given case shall have therefore, to be regulated and governed by the relevant provisions of the Code of Civil Procedure. Sections 15 to 20 of the Code provide for the place of suing, while section 21 states that no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases, where issues are settled, at or before such settlement and unless there has been a consequent failure of justice. It was very justly not disputed before me that sections 15 to 19 of the Code are not attracted and the only relevant provision governing the case in so far as relates to the claim for maintenance is section 20 of the Code which reads thus:

(3.) IT is the rule of Common Law in England that in absence of a contract to the contrary, a debtor is bound to find a creditor for making payment. The place of payment is the place where the creditor resides. Controversy regarding the extent of applicability of this rule in India apart, it must first be established that the parties are related as debtor and creditor before this rule can be invoked. This rule has been held not to apply to a claim for maintenance by a wife against the husband where the wife is compelled to live separately; See Ramlinga Iyer v. Jayalakshmi, AIR 1941 Mad 695. In the madras case, as in the present case, the wife went away to live separately from the husband and claimed maintenance alleging mal-treatment. Return of Stridhan was also claimed. The suit was brought in the Court where the wife resided with her parents. It was held that the rule of English law that the debtor must find the creditor was not attracted and that the Court for that reason had no jurisdiction to try the suit. I am in respectful agreement with the view taken by the Division Bench of the Madras High Court in ramlinga Iyer's case (supra) and hold that the rule that the debtor must find the creditor cannot be applied to a claim for maintenance by a Hindu wife or child to determine the territorial jurisdiction of a Court to try such action.