Delhi High Court
Ms. Darika Bhatia vs Sh. V.L. Bhatia on 20 April, 2005
Equivalent citations: 119(2005)DLT518, I(2005)DMC823, 2005(82)DRJ25
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Present order disposes of defendant's application under Order 7 rule 11 CPC.
2. It may be noted at the outset that though Order 7 Rule 11 CPC was invoked to non-suit the plaintiff on issue of jurisdiction, during arguments it was also urged that with the marriage of the plaintiff on 18.3.2003 the cause of action has dissolved itself and, therefore, in view of the said admitted fact, suit has been rendered infructuous.
3. Backdrop of the facts on which the cause has been founded for the relief prayed by the plaintiff is that mother of the plaintiff and defendant were married in Delhi on 31.5.1969 as per Hindu Rites and Ceremonies. Parents separated in October, 1998. Both parents were at Dubai when separation took place and defendant initiated divorce proceedings against his wife. On 26.4.1999 defendant embraced Islam. On 19.6.2000 defendant and his wife signed a settlement which was recorded in a court order at Dubai as consent terms on 26.6.2000. Ex-parte decree of divorce was obtained by the defendant against his wife on 20.12.2000. In terms of the consent resulting in a settlement between the defendant and his wife, various properties were given and money was aid by defendant to his wife. Qua the plaintiff, defendant executed a gift deed in respect of DLF Appartment No. 1306B, Baverly Park-II, Qutub Enclave Complex, Gurgaon. Defendant and his mother owned a flat being No. 5, Lily Close St. Pauls Court, West Kiston, London. As per the terms of settlement, defendant transferred his 50% share in the flat to his wife. At the time of settlement flat was under mortgage and it was a term that the defendant would be free from mortgage. Flat in question at London is in occupation of the plaintiff as admitted in para 2(g) of the plaint.
4. Being unmarried on date of filing of the suit, petitioner prays that keeping in view her social status and that of the family, she would need a minimum of Rs.1 crore for her marriage and accordingly seeks a direction against the defendant that he be directed to pay said sum to the plaintiff for her marriage expenses.
5. In the plaint it is averred that parents of the plaintiff separated in Dubai. It is stated that the plaintiff is presently working in London and is in occupation of the flat in West Kingston, London where she is residing. It is averred that the mortgage installments are being paid by the plaintiff. Plaintiff has further averred that she is presently working but her income is not sufficient to live as per status of the family.
6. In respect of the flat at Baverly Park-II, Qutab Enclave, Gurgaon plaintiff states:-
"The plaintiff submits that she has not been a party to the settlement agreement signed between the defendant and the mother of the plaintiff but the plaintiff is however accepting the said flat towards her rights to residence against the defendant, under Hindu Adoption and Maintenance Act, 1956."
7. Throwing light on the status of the defendant, plaintiff states that he is a Chartered Accountant by profession and is working as Managing Director of a company at Dubai at a monthly salary of 45,000/- dirhams (approximately Rs.6 lacs p.m.). It is averred that the defendant has been provided a rent free accommodation, motor vehicle, medical benefits and first class travel to India each year. Net value of all benefits accruing to the defendants are stated to be about Rs.32,44,050/- per year.
8. In para 5 of the plaint, cause of action pleaded is as under:-
"Cause of action arose on 26.12.1974 when the plaintiff was born to her parents at Bombay. It again arose when the parent of the plaintiff took her to Dubai when she was a minor. It again arose in the year 1998 when the defendant deserted the plaintiff and the other members of the family. It again arose in the year 1999, when the defendant embraced Islam and abandoned the family, including plaintiff. It again arose on various dates, when defendant prosecuted the divorce proceedings against the mother of the plaintiff in the Sharia Court at Dubai and has refused to have anything to do with the plaintiff. As such the cause of action is counter claiming till date."
9. Territorial jurisdiction of this court is pleaded as under:-
"The parents of the plaintiff got married in Delhi. The plaintiff was born as Hindu to her parents in Delhi. The plaintiff has a right and a cause of action to claim maintenance from the defendant under the Hindu Adoption and Maintenance Act, hence this Hon'ble Court has jurisdiction.
10. I may note that in para 5 of the plaint, plaintiff has categorically pleaded that plaintiff was born to her parents at Bombay.
11. Suit invokes Section 20 read with Section 3(b)(ii) and Section 23 of the Hindu Adoption and Maintenance Act.
12. In the written statement filed, jurisdiction of this court to entertain the present suit has been questioned on the ground that the defendant and the family including the plaintiff permanently settled in Dubai in the year 1978. The family lived in Dubai for more than 20 years when defendant and his wife separated in the year 1998. It is averred that since 1998, plaintiff has been residing and working in London, defendant continues to reside in Dubai. Plaintiff was born in Mumbai. It is stated that solemnization of the marriage of the defendant with his wife at Delhi on 31.5.1969 does not furnish any part of cause of action and, therefore this court would have no jurisdiction to entertain the claim.
12. It is further averred that plaintiff has admittedly received benefit under the settlement arrived at inter se the parents and hence she could not maintain any action for maintenance.
13. On merits it is averred that the plaintiff is gainfully employed and that she requires no maintenance from her father.
14. In the application under Order 7 Rule 11 CPC it is again pointed out that this court has no territorial jurisdiction and in addition it is pleaded that on 18.3.2003 plaintiff has got married and, therefore, the cause of action has dissolved itself.
15. In reply plaintiff admits factum of marriage but asserts that right to continue with the action is still available to her. It is stated that the plaintiff has raised loans for purposes of marriage and the defendant is obliged to pay the loan amount to the plaintiff.
16. Section 3(b) of the Hindu Adoptions and Maintenance Act, 1956 defines maintenance as under:-
"(b) Maintenance includes:-
(i) ..........
(ii) In the case of an unmarried daughter also the reasonable expenses of and incident to her marriage."
17. Section 20 of the Act reads as under:-
"20. Maintenance of children and aged parents :-
(i) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents."
(ii) ...........
(iii) ...........
18. Section 23 guides the court as to how quantum of maintenance has to be determined.
19. In the teeth of definition of maintenance in Section 3(b) of the Act, learned senior counsel for the defendant Mr. Chetan Sharma, did not dispute that reasonable expenses for marriage of an unmarried daughter would be included in maintenance.
20. Twin issues were raised during arguments. The first was that this court has no territorial jurisdiction to entertain the suit and the second was that the cause has dissolved during the pendency of the present suit and, therefore, the plaint should be rejected.
21. I propose to decide the issue of jurisdiction for the reason if I hold that this court has no territorial jurisdiction to entertain the present suit, this court would have no jurisdiction to decide the second issue raised.
22. The Hindu Adoptions and Maintenance Act, 1956 does not contain any provisions pertaining to jurisdiction and, therefore, recourse would have to be made to the provisions of the Code of Civil Procedure, 1908.
23. Suit in question seeks maintenance for marriage expenses and, therefore, Section 16 of the Code of Civil Procedure, 1908 would not apply. For the same reason Sections 17 and 18 of the Code of Civil Procedure would not apply.
24. Sections 19 and 20 of the Code of Civil Procedure, 1908 read as under :-
"19. Suits for compensation for wrongs to person or movables.- Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
20. Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
25. On the assumption that by not maintaining his unmarried daughter, father commits an act which is a wrong done to the daughter, under Section 19 of the Code of Civil Procedure, jurisdiction would be of the court where the wrong was done or within the local limits of the jurisdiction of the court, where the defendant resides or carries on business or personally work for gain.
26. For the purposes of jurisdiction under Section 20 of the Code of Civil Procedure 1908, jurisdiction would be of the court where the defendant voluntary resides or carries on business or personally work for gain or where the cause of action, wholly or in part, arises.
26. Undoubtedly, a Hindu father is under a legal obligation to maintain his unmarried daughter for this is the plain mandate of Section 3(b) read with Section 20 of the Hindu Adoptions and Maintenance Act. If father refuses to do so he commits a wrong qua the daughter. Question would be as to where is this wrong done? Prima facie, the place where the daughter is abandoned is the place where the wrong is done. In the context of law it would mean the place where the parties had their domicile i.e. last resided, or in other words, the place of residence immediately prior to the abandonment would be the place where the wrong is committed.
27. As explained by the Lordships of the Supreme Court in the decision reported as 1981 (4) SCC 517 Jeevanti Pandey v. K.C. Pandey:-
"12.In order to give jurisdiction on the ground of 'residence' something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the court in which the respondent is sued, is his natural forum. The word, 'resides' is by no means free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable in the context in which it is found. It is capable of being understood in its ordinary sense of having one's own dwelling permanently, as well as in its extended sense. In its ordinary sense, 'residence' is more or less of a permanent character. The expression 'resides' means to make an abode for a considerable time; to dwell permanently of for a length of time; to have a settled abode for a time. It is the place where a person has fixed home or abode. In Webster's Dictionary, 'to reside' has been defined as meaning 'to dwell permanently or for any length of time' and words like, 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home, and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides."
28. A perusal of the averments made in the plaint and in particular para 5 reveals that the plaintiff admits that the family settled in Dubai when she was a minor. Plaintiff admits that her parents separated in Dubai. Plaintiff categorically avers in the plaint that she and her mother were deserted by the defendant in 1998 at Dubai. There is no assertion in the plaint that after the family migrated to Dubai and permanently settled there in the year 1978, the family ever returned and had a residence in India, much less in Delhi.
29. For the purposes of Section 19 of the Code of Civil Procedure 1908 Delhi would therefore not be the place where wrong was done to the plaintiff.
30. I have noted above that in para 6 of the plaint, plaintiff has averred that she was born in Delhi but in para 5 she has asserted to the contrary, namely that she was born at Bombay.
31. Learned counsel for the plaintiff did not deny that the plaintiff was born at Bombay. Only fact stated in the plaint on which cause of action pertaining to Delhi is pleaded is the factum of the marriage of the defendant to the mother of the plaintiff.
32. Would the factum of marriage of the defendant to the mother of the plaintiff at Delhi be a part of cause of action in a suit claiming maintenance by an unmarried daughter?
33. Two things must happen to give rise to a cause of action. Firstly, is the coming into existence of a right and secondly its infringement or threat to be infringed.
34. If the plaintiff was not born she would have no legal existence and could maintain no action. Her birth is the starting point of her right.
35. What constitutes a cause of action? The Hon'ble Supreme Court explained the phrase in the decision reported as (1989) 44 Taxman 443, Laminart Pvt. Ltd. v. A.P. Agencies it was noted as under:-
"That the jurisdiction of the Court in the matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors. A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment of the Court, in other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded."
36. Fry L.J. In Read v. Brown (1888) 22 QB 128 defined cause of action as :-"everything which, if not proved, gives the defendant an immediate right to judgment must be part of the cause of action."
37. Cause of action does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved is a part of cause of action. As observed in AIR 1969 Calcutta 224, Ujjal Talukdar v. Netai Chand Koley:-
Evidence of fact should not be confused with the fact itself. Even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the court within the territorial limits of which that little occurs.
38. In a suit claiming maintenance by an unmarried daughter against her father what is required to be proved by the daughter is that she was born to her father, that she has no means to support herself and finally that the father is not maintaining her. It is relevant to note in this context that it is the obligation of a Hindu to maintain his legitimate as well as illegitimate children. In other words, factum of a legal and valid marriage is irrelevant in proceedings for maintenance by an unmarried daughter.
39. Marriage of the parents of the plaintiff being wholly irrelevant to the enquiry in respect of the claim of the plaintiff, it is no part of cause of action and, therefore, factum of marriage of the defendant to mother of the plaintiff at Delhi would not confer jurisdiction to the courts at Delhi.
40. I may also note that the plaintiff has attempted to serve the defendant through his sister in India by giving the address of the defendant in the memo of parties as C/O Mala Gupta (sister of the defendant).
41. I accordingly hold that this court has no territorial jurisdiction to entertain the plaint.
42. I need not decide on the issue whether the cause of action has dissolved on account of the plaintiff having got married. For record, I may note that the submission made by counsel for the defendant was that plaintiff would have no right to be maintained by the father ones she got married. Counsel asserted that plaintiff has admitted in the plaint that she has taken possession of the flat at Gurgaon pursuant to the settlement between her parents but has pleaded that she has accepted the flat in lie of her right of being provided a residence by her father. Counsel urged that the plaintiff cannot approbate and reprobate. If she took the flat under a settlement that was the end of the matter. Alternatively it was urged that on pleas taken by the plaintiff once she got married she was obliged to return the flat to the father. In further alternative to this, it was stated that she could appropriate the flat towards her marriage expenses as once married, father would be under no obligation to provide residence.
43. Since I have held that this court has no territorial jurisdiction to entertain the plaint, I need not dilate on this issue.
44. The plaint is accordingly rejected for want of territorial jurisdiction.
45. Registry is directed to return the plaint to the plaintiff for being filed in a court of competent jurisdiction.
46. No costs.
CS(OS) NO. 688/2001In view of the order passed in IA No. 6536/2004, registry is directed to return the plaint to the plaintiff.
No costs.