Delhi District Court
Mrs. Bimla Devi Ohri vs Sh. Baldev Sahai Ohri on 19 September, 2007
(1)
IN THE COURT OF PAWAN KUMAR JAIN
ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT, DELHI
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New Suit/Petition No: 354/06
Order reserved on : 07.09.02
Date of order : 19.09.07
IN THE MATTER :
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MRS. BIMLA DEVI OHRI
W/o SH. BALDEV SAHAI OHRI
R/o C-200, SARVODAYA ENCLAVE,
NEW DELHI.
... PETITIONER
Versus
SH. BALDEV SAHAI OHRI
S/o LATE SH. AMAR CHAND OHRI
R/o BAZAR KALAN,
BAHADARPUR,
HOSHIARPUR,
PUNJAB.
.... RESPONDENT
ORDER
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1. By this order I shall dispose of the application of the (2) respondent moved under order 7 rule 11 read with Section 20 CPC and another application moved by the petitioner under section 18 of the Hindu Adoption and Maintenance Act for interim maintenance.
2. In brief the circumstances leading to move the said applications are that petitioner had filed a petition under section 18 of the Hindu Adoption and Maintenance Act against her husband i.e the respondent alleging that the marriage was solemnised in December 1952 in accordance with Hindu rites and customs at Basti Sheikh, Jalandhar, Punjab and one daughter and son were born from the said wed lock on 28.06.55 and 6.10.56 respectively. It is further alleged that due to the harassment caused by the respondent, petitioner along with her children were compelled to leave the matrimonial house and consequently petitioner had started living with her brother at Jalandhar along with her children. It is further alleged that since April 1978 respondent started living with another woman named Uma Khanna. It is further averred that respondent is the guilty of desertion and had abandoned the petitioner without any reasonable cause and also neglected her to maintain her. (3) Consequently, petitioner started living with his son Ashwani at Dausa Punjab and joined her daughter in Delhi, when her son expired on 15.09.05. It is further stated that petitioner is suffering from various diseases and even unable to see at all, thus needs treatment urgently for her speedy recovery and huge money is required for the same. It is alleged that respondent is a man of resources as he is practicing lawyer of Punjab and Haryana High Court and earning between Rs.15 to 20 lacs per annum. Besides these, respondent has also agricultural land and other immovable properties and earning handsome income from the same.
(i) With these averments, petitioner has claimed monthly maintenance of Rs.15,000/- and Rs.10,000/- for purchasing house hold articles to maintain separate kitchen and Rs.25,000/-
for legal expenses.
(ii) Petitioner also prayed for interim maintenance at the rate of Rs.15,000/- per month till the disposal of the main petition.
(4)
3. Respondent opposed the said petition and application by filing his written statement and reply wherein he denied each and every allegations leveled against him and further submitted that petitioner herself had left the matrimonial house in 1962 as respondent refused to accept her demand of a separate house. It is further stated that respondent had borne all the expenses of education of both the children and even the expenses of their marriage. It is categorically denied that respondent is earning Rs.15 to 20 lakh per annum and stated that his monthly income is about Rs. 18000/-. It is further stated that due to his old age, respondent is also suffering from various diseases and also unable to do his professional duties properly. It is further stated that Uma Khanna is the God Sister of his father, who had bequeathed the property through a Will in her favour and after the death of his father, she is also looking after the respondent.
4. Besides this, respondent also took the preliminary objection that this Court has no territorial jurisdiction to entertain the present petition as neither the marriage was solemnised nor they ever lived after marriage within jurisdiction of this Court. On the basis of same, respondent had moved an (5) application separately under order 7 rule 11 r/w section 20 CPC.
5. The said application is opposed by the petitioner by filing the reply seperately stating that since petitioner is residing presently in Delhi with her daughter, thus this Court has territorial jurisdiction to entertain the present petition.
6. I have heard ld. Counsel for petitioner and Ld. Counsel for respondent at length, perused the record carefully and gave my thoughtful consideration to their contentions.
(i) Ld counsel for the respondent vehemently contended that this Court has no territorial jurisdiction to entertain the present petition as neither the marriage had solemnised nor parties had ever resided after marriage within the jurisdiction of this Court. It is argued that under section 20 of the CPC, jurisdiction lies where the defendant resides or works for gain or any cause of action arises. It is contended that no cause of action arose within the jurisdiction of this Court as parties had never resided in Delhi after their marriage. In support of his contentions Ld counsel for respondent has strongly relied upon (6) the judgment reported in 2005 (IV) RCR (Civil) 811 (Delhi), 1982 HLR 107 (Madhya Pradesh), 1982 HLR 266 (Madhya Pradesh). It is further argued that no interim maintenance can be granted to the petitioner without first deciding the issue of jurisdiction and strongly relied upon the judgment 2005 (3) Civil Court Cases 711 (Supreme Court).
(ii) Ld counsel for petitioner refuted the said contentions by arguing that this Court is competent to entertain the present petition as petitioner is residing within the jurisdiction of this Court. It is further urged that even the question of jurisdiction cannot be looked into at the time of granting interim maintenance. To support his contention, Ld counsel has strongly relied upon the judgment reported as 1 (2002)DMC 56.
7. In case Harshad Chiman Lal Modi versus DLF Universal Limited and another reported in 2005 (3) CCC 711 wherein in para 27 it is held :
"We are unable to uphold the contention. The jurisdiction of a court may be classified into several (7) categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction ; and (iii) jurisdiction over the subject matter. So far as territorial and pecuniary jurisdiction are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to the subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity".
8. It elucidates from the said judgment that if the party fails to take objection pertaining to pecuniary or territorial jurisdiction at the earliest opportunity and before framing of the issues, such party cannot be allowed to raise such objection at the subsequent stage. Thus, restriction is imposed on the party that if they wish to take the objection of territorial/pecuniary jurisdiction they should take at the first opportunity and in any before the settlement of the issues. No restriction is imposed on the Court that Court is bound to decide such objection before granting any interim maintenance or any interim relief. (8) However, if the Court has no jurisdiction to entertain over a subject matter of the suit by virtue of limitation imposed by the statute, in such situation the Court has no jurisdiction to entertain such suit. Admittedly present petition is for the maintenance under Hindu Adoption and Maintenance Act and it is undisputed fact that this Court has jurisdiction over the said subject matter. Thus, it cannot be said that this Court has no jurisdiction to entertain the petition of maintenance. Considering all these facts, I am of the opinion that the above judgment is not helpful to the respondent in any manner as it is not applicable in the present case.
9. Perusal of judgment Ms Darika Bhatia vs V.N., 2005 (4) RCR Civil (Delhi) reveals that facts of that case were totally different from the facts of the present case. In that case, one unmarried daughter had claimed maintenance from her father who had already divorced his wife in Dubai. In that case the plaintiff had claimed the jurisdiction of Delhi Court on the ground that marriage was solemnised in Delhi in 1969 and plaintiff was born in Delhi. In that case, after marriage husband and wife had settled in Dubai in 1978 and since then they never (9) resided India and even marriage was also dissolved in Dubai itself. Further plaintiff was working for gain in London and was born in Mumbai. Considering all these facts, it was held that Delhi Court had no jurisdiction to entertain the petition of maintenance filed by the plaintiff. Case law discussed in para 27 in that case is relevant to decide the controversy between the parties in the instant case, hence relevant portion of the same is re-produced as under:
"In order to give jurisdiction on the ground of 'residence' something more then 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....................".
10. On the contrary, in the instant case the petitioner is residing in Delhi for the last more then two years after the death of her son, thus in my opinion the said judgment is not applicable in the facts of the present case.
11. Ld counsel for petitioner has strongly relied upon the judgment Ms Indira Sonti vs Surya Narayana Murty Sonti and another, 1 (2002) DMC 86. para 6 and 7 of the said (10) judgment are relevant, hence are reproduced as under:
"While dealing with this application for grant of interim maintenance, it is not necessary to go into the question of territorial jurisdiction at this stage. Suffice is to state that this is a matter which is to be ultimately decided on the basis of evidence which would be led by the parties at the appropriate stage. However, it would be significant to point out that the Act is silent about the territorial jurisdiction. In the absence of any such specific provision in the Act, one can examine the question by falling back upon the provision relating to territorial jurisdiction in Section 20 of CPC as well as Section 126 of Cr.P.C. Dealing specifically with jurisdiction relating to maintenance cases. As per Section 20 CPC suit can be instituted where the defendant reside or cause of action arise. Interestingly claim for maintenance under the provision of Code of Criminal Procedure, the Section 126 thereof makes a significant departure from the aforesaid rule contained in Section 20 of CPC. Section 20 of CPC by stipulating that the suit could be filed where the defendant resides is designed to secure that justice might be brought as near as possible to every man's hearth stone and that the defendant should not be put up to the trouble and expense of travelling long distance in order to defend himself in case in which he may be involved (See: AIR 1963 SC 1681 at 1683, Union of India and Anr V/s Sri Ladulal Jain). This objective is given go-by in so far as application for maintenance under section 125 of Code of Criminal Procedure is concerned. As per Section 126 of Code of Criminal Procedure, such petition can be filed where the applicant resides. The reason for enacting such a statutory provision is not far to (11) seek. Application for maintenance is filed by persons including wife who are destitute and normally without any income. They are not able to maintain themselves of their own. That is why they are seeking maintenance from the opposite party. Therefore it is the applicant, in such cases, who is to be given relief at a place nearer to his/her hearth stone. In the case of Mst Jagir Kaur and Anr vs Jaswant Singh reported in AIR 1963 SC 1521, the Supreme Court observed that this action should be construed liberally so that a helpless woman is not deprived of assistance from a court easily accessible to her. This view is followed by Kerala High Court in the case of Purushotaman vs Mallika reported in 1989 (1) Ker. Law Times 755. The moot question which therefore arises is as to whether, in the absence of any such provision, in the Hindu Adoption and Maintenance Act, principles contained in Section 126 of the Code of Criminal Procedure or section 20 of CPC should govern such proceedings. No doubt application under section 125 of Code of Criminal procedure are almost in the nature of civil proceedings. The provision of Chapter IX (Section 125 to 128) which constitute a complete Code in itself, are not in the nature of penal provision but are only intended for the enforcement of a duty in default which may lead to vagrancy (See : 1963 (1) Ld. Counsel for respondent. Law Journal 131, Smt Savithramma vs N Ramanarasimhiah)"
"It would be appropriate if the Legislature steps in and enacts a Specific Provision relating to territorial jurisdiction in the matters of claiming maintenance under the Hindu Adoption and Maintenance Act, in the Act itself, on the lines suggested by Section 126 of the Cr.P.C are more (12) in tune with the needs of the society. However, in the absence of any provision in Hindu Adoption and Maintenance Act, whether the principles contained in Section 20 of CPC or the principle contained in Section 126 of Cr.P.C would govern is a moot question which court will have to address itself at the appropriate stage. While interpreting the provision of this nature, Court would not remain mute spectator and can adopt a purposive approach which advances justice. However, it is not necessary to elaborate this point any further. As this aspect needs determination which raises important question of law, it would be appropriate not to decide the aspect of territorial jurisdiction at this stage. Even if the provision of Section 20, CPC are applicable, the case of the plaintiff is that part of action arose in Delhi. Therefore ultimately evidence is required before this aspect is decided. For this reason also the question about jurisdiction is to be deferred to be decided at appropriate stage."
12. It becomes abundantly clear from the said judgment that the Court is not required to go into the question of territorial jurisdiction at the stage of deciding the question of interim maintenance as ultimately the issue of territorial jurisdiction will be decided on the basis of evidence led by both the parties at the appropriate stage. Moreover, in the present case the respondent has categorically stated that she is residing in Delhi since 2005 after the death of his son. The question as to whether the (13) question of territorial jurisdiction is to be governed by section 20 CPC only or by the provisions of 126 Cr.P.C. will be decided by the Court at the appropriate stage.
13. Though Ld. Counsel for the respondent has also relied upon the judgments of Madya Pradesh High Court (Supra) yet I am of the view that the same are not binding on this Court and has only persuasive value. On the other hand, this Court is bound by the law laid down by our own High Court in the judgment Indra Sonti (Supra).
14. In view of the law laid down in the Indra Sonti's case (Supra) and the fact that the petitioner is residing in Delhi since 2005 with her daughter after the death of her son, I am of the opinion that the question of territorial jurisdiction cannot be looked into at this stage and parties will require to lead evidence on the said point. Unless both the parties lead their evidence at the appropriate stage, it cannot be said that this court has no territorial jurisdiction to entertain the present petition. Thus, in my opinion the application moved by the respondent under order 7 rule 11 is not maintainable at this stage and the issue of (14) territorial jurisdiction will be decided by the Court at the appropriate stage.
15. Ld. Counsel for the respondent contended that respondent is an old man of 78 years of age and suffering from multiple diseases. It is urged that due to his old age and ill- health, respondent is unable to perform his professional duties properly and thus is not taking much cases. It is further argued that his monthly income is between Rs.10,000-12,000/- per month and said amount is required for the treatment of his ailment. It is further submitted the respondent is already paying maintenance @ Rs.300/- per month to the petitioner.
16. On the other hand, ld. Counsel for the petitioner contended that petitioner is also an old helpless lady having no source of income and is residing at the mercy of her married daughter in Delhi. It is argued that though respondent is earning Rs. 15 to 20 lakh per annum yet in his written statement he stated that his monthly income is about Rs. 18,000/- per month, thus the contention of ld. Counsel that monthly income is between Rs.10,000-12,000/- per month is without any basis. It is (15) further stated that petitioner is also suffering from various diseases and needs huge amount for the treatment of her ailment.
17. Admittedly, respondent is a practicing advocate of Punjab. Though the petitioner has alleged that the respondent is earning more than Rs.1 lakh per month yet she failed to produce any documentary evidence in this regard. Though during the course of argument plea is taken that the monthly income of respondent is between Rs. 10,000-12,000/- per month yet in the written statement the respondent has admitted that his monthly income is about Rs.18,000/-. Admittedly, both the parties are in the last quarter of their lives and also suffering from old age diseases. It is admitted case of the respondent that he is residing in his own house. Being a practicing lawyer, his monthly income cannot be a constant, thus it cannot be said that respondent's income is limited only to Rs.18,000/- per month even after such a long standing. Considering all these facts and assuming that the monthly income of respondent is Rs.18,000/- per month, I am of the opinion that petitioner is entitled to Rs.5000/- per month as maintenance w.e.f. the date of filing of the petition i.e 21.08.2006. Respondent shall pay the arrears of (16) maintenance within a period of 15 days from today and shall pay future maintenance w.e.f. October, 2007 by 10th day of each month.
18. In nutshell, the application under order 7 rule 11 r/w section 20 CPC is dismissed with the direction that the question of jurisdiction will be decided at the appropriate stage and application of the petitioner for interim maintenance is allowed. Announced in the open court on this 19th day of September, 2007 (Pawan Kumar Jain) Additional District Judge Fast Track Court, Delhi