Sm. Shyamali Sarkar vs Ashim Kumar Sarkar on 18 September, 1987

    Sm. Shyamali Sarkar vs Ashim Kumar Sarkar on 18/9/1987

JUDGMENT

   A.M. Bhattacharjee, J.

   1. A petition by the applicant-wife for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act. dismissed by the trial court. has been
decreed by this Court on appeal. The wife has now filed this application in this
Court under Section 25 of the Hindu Marriage Act for permanent alimony. In
opposing this application, Mr. Bachawat, the learned Counsel for the
husband/opposite party, has urged that this Court cannot entertain this
application which is to be filed in the 'District Court' in accordance with the
provisions of Section 19 of the Hindu Marriage Act. Mr. Bachawat has submitted
that the present application ought to have been filed in the City Civil Court
which is the 'District Court' within the meaning of the Act, where the original
petition for restitution of conjugal rights was presented in accordance with
Section 19 of the Act. For better appreciation and facility of discussion, the
relevant portions of Section 19 and Section 25 of the Act are reproduced
hereinabove : --

     "19. Every petition under this Act shall be presented to the district court
within local limits of whose ordinary civil jurisdiction -

     (i) the marriage was solemnized;

     (ii) the respondent at the time of presentation of the petition resides; or

     (iii) the parties to the marriage last resided; or..."

     Section 25.

     (i) Any court exercising jurisdiction under this Act may, at the time of
passing any decree or at any time subsequent thereto, on application made to it
for the purpose by either the wife or the husband shall pay to the applicant for
her or his maintenance and support such gross sum or such monthly or periodical
sum for a term not exceeding the life of the applicant as, having regard to the
respondent's own income and other property, if any, the income and other
property of the applicant, the conduct of the parties, and other circumstances
of the case, it may seem to the court to be just, and any such payment may be
secured, if necessary, by a charge on the immoveable property of the
respondent".

   2. Mr. Bachawat has urged that an application under Section 25 of the Hindu
Marriage Act is nevertheless a "petition under this Act" within the meaning of
Section 19 and must, therefore, be filed in the 'District Court' (here, the City
Civil Court) under and in accordance with Section 19.

   3. The expressions "application" and "petition", though sometimes used
indiscriminately to denote the samething, have different connotations also. An
"application" for example, unless otherwise expressly provided, may even be
oral, as would appear, for example, from the provisions of Article 134A of the
Constitution, the provisions of Rule 11, Order 21 of the Civil P.C. and the
catena of cases decided under Section 5 of the Limitation Act. But a "petition"
must and cannot but be in writing. That these two expressions have different
connotations, would also appear from the provisions of Section 2(a) & (b) of the
Limitation Act of 1963; for otherwise, even as late as in 1963, those clauses
would not have expressly defined the word "application" to include a "petition"
and the word "applicant" to include a "petitioner". When a statutory definition
defines "A" to include "B", then ordinarily, though not invariably, the
implication is that "A" would not have, but for such definition, included "B".
While recommending the insertion of these new definitions in the Limitation Act
of 1963, the Law Commission in its Second Report on Limitation (S. 9, page 5)
observed that "the object is to provide a period of limitation for original
petitions and applications under special laws". These observations would also
indicate that the word petition, when used in juxtaposition to the word
application, would mean petitions of original nature, that is petitions which
would initiate and found proceedings of original nature which are independent of
and not consequential to any other proceedings.

   4. The Hindu Marriage Act has provided for four substantive reliefs like
restitution of conjugal rights, judicial separation, nullity of marriage and
divorce and in Sections 9, 10, 11, 12, 13, 13A, 13B and 14 where it has provided
for those substantive reliefs, it has also provided that the mode to invoke
reliefs under those Sections would be by way of petition, But in Section 24 and
25, where the Act has provided for proceeding for pendente life and also
permanent alimony, which can be initiated only as consequential to another
original proceeding for any of the substantive reliefs under Sections 9 to 14 it
has provided that the mode to invoke those Sections for such consequential
reliefs would be by way of application. In Section 14 itself, while in Sub-
section(1), word petition has been used with reference to substantive proceeding
for dissolution of marriage, in the proviso to Sub-section (1) and in Sub-
section(2) the word application has been used to provide for the mode to
initiate the incidental proceeding to. obtain permission of the Court to present
the substantive petition for dissolution of marriage before the expiry of one
year since the date of the marriage. Now, when in respect of the same subject-
matter, namely, matrimonial reliefs, different words like "application" and
"petition" have been used in the same Statute, and even in the same Section of
that Statute, then there may very well be a presumption that the Legislature,
which is ordinarily presumed to use words precisely and not indiscriminately,
has used the two different words to mean different things. When two different
words are used in the same Statute, it may be presumed that those words, even if
otherwise analogous, have been used with different connotations. Applying these
rules of interpretation, it may be held that the expression "petition" in
Section 19 of the Hindu Marriage Act would mean orginal petitions filed for any
of the substantive reliefs awardable under Sections 9 to 13B of the Act and
would not cover applications under Section 24 or 25, which can be filed only
during the pendency or on the termination of a substantive proceeding under
Sections 9 to 13B, as something incidental or consequential to such a
proceeding.

   5. But let us not go by the rules of interpretation alone. For, as pointed
out by Chandrachud, J. (as his Lordship then was) in Union of India v.
Sankalchand, , the principles of

   interpretation, with rules pulling in different directions, have become a
murky area and just as the case-law digest can supply an authority on almost any
thinkable proposition, so also these principles have collected over the years
divergent formulae which can fit in with any interpretation which one may choose
to place". To quote from Lord Denning (Discipline of Law -- 1979 -- page 9), "if
you find a maxim or rule on your side, your opponent will find one on his side
to counteract it". We would accordingly find in any standard treatise on the
subject some other rules also to the effect that the Legislature may use two
different expressions without intending to make any distinction and, as pointed
out by the Privy Council in Ramdas Vithaldas v. Amerchand, ILR 40 Bom 630 at p.
638 : (AIR 1916 PC at P. 9), the rule that two different words in the same
context should mean two different things may ha ve to be negatived in a case
where the "draughtsman was not very careful in his use of language". Indeed a
reference toS. 26 of the Hindu Marriage Act would show that the draftsman was
really careless, for that Section provides for custody of children consequential
to a decree in a substantive proceeding and, therefore, according to the
analysis made hereinbefore based on rules of interpretation, the Section should
have provided for an application as the mode to invoke such consequential
relief. But the Section, for reasons difficult to appreciate, has used the
expression "application by petition", copying the same blindly from Section 42
of the Divorce Act, 1869 (which was also similarly copied in Section 38 of the
Special Marriage Act, 1954) forgetting altogether that the Indian Divorce Act
having provided for suits (and not petitions) for substantive matrimonial
relief, its providing for application by petition for consequential relief could
have created no confusion.

   6. I am, however, satisfied that even without the aid of these ambivalent
rules of interpretation, Section 25 of the Hindu Marriage Act would on a proper
construction of its express terms, clearly indicate that the Section having
provided for some relief which is incidental or consequential to the substantive
relief awardable under the Act, can and is to be invoked in the court which has
granted that substantive relief. Under the express terms of Section 25(1) of the
Hindu Marriage Act, extracted at the outset, "any court exercising jurisdiction
under this Act" can order payment of permanent alimony and there should not be
the slightest doubt that a Court hearing appeals under Section 28 of the Hindu
Marriage Act and thus granting or refusing, by way of confirmation or otherwise,
the various reliefs awardable under the Act, is obviously exercising
jurisdiction under this Act. It is true that, as pointed out by Mr. Bachawat,
under Section 19 of the Act, only the District Court hats been conferred
jurisdiction to entertain petitions under the Act. But while the district courts
have thus been exclusively granted the initial jurisdiction in respect of these
petitions under the Hindu Marriage Act. the appellate courts, while hearing
appeals from the decisions of the district courts, and affirming, modifying or
reversing those decisions, would also be exercising jurisdiction under the Hindu
Marriage Act. If, as pointed out by Sir Ashutosh Mookerjee in Gurdeo Singh v.
Chandrika Singh, (1909) ILR 36 Cal 193 at P. 206, the expression jurisdiction
means "the power or the authority of a court to hear and determine a cause, to
adjudicate or exercise any judicial power in relation to it", then there cannot
be an iota of doubt that the appellate courts in hearing appeals under Section
28 of the Hindu Marriage Act, and in affirming or reversing the decrees granting
or refusing reliefs under the Act, exercise jurisdiction under that Act. It
would, in my view, amount almost to a contradiction in terms to say that the
appellate Court has granted a decree under the Hindu Marriage Act, but yet has
not exercised any jurisdiction thereunder.

   7. Once it is held, as it cannot but be, that this Court in an appeal in
granting the decree for restitution of conjugal rights has exercised
jurisdiction under the Hindu Marriage Act within the meaning of Section 25
thereof, then the other relevant provisions of Section 25 would leave no room
for doubt that this Court can entertain the application under that Section for
the grant of permanent alimony. The Section having clearly authorised the Court
to order payment of alimony "at the time of passing any decree" and "on an
application made to it", unmistakably indicates that it is the Court, original
or appellate which has granted the decree, that would be entitled to order grant
of alimony under Section 25.

   8. Mr. Sengupta, the learned counsel for the wife-applicant has drawn our
attention to the Division Bench decision of this court in Sandhya v. Gopinath,
and has urged that the decision is an authority for the proposition that the
High Court, while granting restitution of conjugal rights in appeal, can also
order payment of permanent alimony under Section 25. In that case, however, as
would appear from para 1 and 25 of the judgment, both the petitions under
Section 9 of the Hindu Marriage Act for the restitution of conjugal rights as
well as the prayer for permanent alimony under Section 25 were dismissed by the
trial court and on appeal, this court having granted the prayer for restitution,
also allowed the prayer for permanent alimony. Therefore, the question falling
for our consideration in this case, namely, whether this Court while allowing
the appeal and granting restitution of conjugal rights in such appeal can also
for the first time entertain the application under Section 25, when no such
application was filed in the trial court, did not arise and was not considered
in that case.

   9. The single-Judge decision of the Punjab & Haryana High Court in Darshan
Kaur v. Malook Singh, , referred to by Mr.

   Bachawat, however, appears to have laid down (at 30) a contrary proposition
to the effect that whichevercourt might have passed the decree in question, the
jurisdiction to entertain an application under Section 25, even though as a
follow-up of that decree, would have to be determined afresh under and in
accordance with the provisions of Section 19. The learned Judge has ruled that
the court granting a decree shall not ipso facto be clothed with the
jurisdiction to entertain an application under Section 25, unless that court has
otherwise jurisdiction under the provisions of Section 19. It has accordingly
been held that where a petition under the Hindu Marriage Act has been dismissed
by the district court, but has been decreed on appeal by the High Court or the
Supreme Court, an application under Section 25 will not lie in the High Court or
the Supreme Court, even though that Court has granted the decree, but would lie
in the district court having jurisdiction under Section 19.

   10. In Jagdish v. Banumati, a learned single Judge of the Bombay High Court
has, however, dissented from the Punjab decision in Darshan Kaur (supra) and has
held (at p. 300) that Section 19 would, by itself, have no manner of application
to an application under Section 25 and that the same being an application for
relief consequential to the decree passed in the original proceeding, would have
to be filed in the Court which has passed the decree. But it must, however, be
noted that in this case also the question as to whether, when such decree has
been granted by the appellate Court, such an application can for the first time
be filed directly in the appellate Court did not arise for consideration.

   11. It is well-settled that the powers of the trial Court and the appellate
Court, unless otherwise expressly provided by the relevant Statute, are co-
extensive. If under Section 25 of the Hindu Marriage Act, an application
thereunder can lie in the District Court which has decreed the petition, it is
difficult to understand why such an application cannot be filed in the appellate
Court when that Court has granted the decree. Reference, by way of analogy, may
be made to the decision of the Supreme Court in R. S. Lala Praduman Kumar v.
Virendra Goyal, where it has been held that though Section 114 of the T. P. Act
in express terms entitled a tenant to invoke that section "at the hearing of
this suit", the tenant can nevertheless invoke the same, even for the first
time, in the appellate Court also, "an appeal being a rehearing of the suit". I
am accordingly of opinion that when the decree for the substantive relief has
been passed by the appellate Court an application for the consequential relief
under Section 25 shall also lie in that Court and, as already stated, the words
"at the time of passing any decree" and the words "on an application made to
it", in Section 25 of the Hindu Marriage Act would irresistibly indicate that
the Court, whether appellate or original, which has passed a decree under any of
the Sections 9 to 13B of the Hindu Marriage Act, shall be entitled to entertain
an application under Section 25.

   12. On the merits of the application, I entirely agree with the order
proposed by my learned brother Ajit Kumar Nayak, J. directing payment of Rs.
500/- only as alimony to the wife-applicant by the husband/opposite party.

   Ajit Kumar Nayak, J.

   13. Undisputedly the petition of the wife appellant for restitution of
conjugal rights under Section 9 of the Hindu Marriage Act, dismissed by the
trial Court, has been decreed by this Court on appeal. Thereafter, the wife has
filed the present application for permanent alimony alleging that she has no
means or income to support or maintain herself and that she is absolutely a
dependent upon her brothers and mother for her maintenance since she was
deserted by the opposite party-respondent in 1977. On the other hand it is
contended, the opposite party as a professional artist of repute in Bengali
feature films and 'jatra" party has substantial earnings of not less than Rs.
15,000/- per month. Apart from his earnings as an artist, the opposite party is
stated to have good amount of income as interest, dividend from fixed deposits
in different banks, unit trust, shares of different companies. He has also made
investments in the benami business and acquired flats in fashionable areas of
Calcutta. In short, it is contended that opposite party lives in a decent style
maintaining a car, paying the bills as member of Calcutta South Club, spending a
good amount for horse races etc., and all these cannot be met with a monthly
income of Rs. 1,0007- as claimed by him. The applicant, it is urged beinga
respectable lady of good association and status and further as the wife of a
reputed artist husband cannot and should not depend upon the charity of her
brothers and mother and as such requires at least a sum of Rs. 5,000/- per month
to maintain herself as she has no place of residence of her own or any other
money or asset to sustain her.

   14. This application of the wife appellant has been sought to be assailed on
behalf of the opposite party, firstly on the ground that it can only be filed
before the court of principal original civil jurisdiction i.e. the City Civil
Court and as such it cannot be entertained and no relief can be granted by this
Court exercising appellate jurisdiction. Secondly, it is urged, the application
should fail on merit as the applicant has means and independent source of income
to support herself and thirdly, that the opposite party is not in a position
financially to pay any maintenance or alimony to the petitioner which in any
event she is also not entitled to.

   15. Regarding the first objection, the matter has been elaborately dealt with
in all its aspects by my Lord, Mr. Justice Bhattacharjee and I find no reason to
differ from the findings arrived at by his Lordship holding that Section 25 of
the Hindu Marriage Act makes provision for the Court, whether appellate or
original, exercising jurisdiction under this Act, to entertain an application
under Section 25, when it has passed a decree granting reliefs under the Act.

   16. As regards the second objection, it has been urged on behalf of the
husband opposite party that the applicant, masquerading as the wife, has made
this false and frivolous claim, deliberately Suppressing material facts, with
the sole object to blackmail the opposite party to put pressure on him with a
view to extort money from him. It may be stated at the very out-set that in view
of the decree passed by this Court on appeal granting relief under Section 9 of
Hindu Marriage Act, it cannot be said that the application for permanent alimony
at the instance of wife applicant cannot be presented by her at all so long the
decree stands or at least so long there is no contrary finding supporting the
case of the opposite party.

   17. Nextly, it is argued that the petitioner is employed and has inde'pendent
means to support and maintain herself. Save and except some such statements or
averment of general nature appearing in the affidavit in opposition, there is no
concrete or reliable material on record wherefrom it can reasonably be inferred
that the applicant is gainfully employed anywhere or has independent source of
income of her own to support herself. It has not been disputed by the applicant
that prior to her marriage in 1976, she had been employed as librarian at
"Biswaroopa Theatre" and thereafter worked asan officer with M/s. Kothari
Organisation, at Calcutta, But she has asserted emphatically that she had to
give up (affidavit in reply page 15) all these at the instance of the opposite
party-respondent long before her marriage. She has also denied that she is
employed in any firm of advocates or anywhere else earning at least Rs. 750/-
per month. Had the applicant been really employed anywhere, a salary certificate
from the employer or any other relevant paper can reasonably be expected to be
produced to contradict her contention. But no such thing has been produced by
the opposite party. Nor there is any other iota of evidence or material to show
that the applicant has even any other asset to fall back upon to sustain her.
Her explanation with regard to meeting all her expenses in conducting the
litigations by borrowing and assistance of her relatives seems to be perfectly
probable and justified. In view of what has transpired from materials on record
we can reasonably come to the conclusion that the applicant, an educated lady of
good bearing, and wife of an artist of some repute, is left without any tangible
or known source of income to support her. Obviously, she has to depend upon her
none-too-affluent brothers and mother which definitely is not something which is
very desirable in these days.

   18. As against this, it is an admitted fact that opposite party is a
professional actor of some repute employed by well known "Rangana Theatre" of
Calcutta and is engaged by similar such organisations. It is an undisputed fact
that only a month before the decree on appeal was passed by this Court the
opposite party sold his fashionable flat at Alipore Road for handsome amount
which according to the applicant was nothing but a benami transaction and a
device to deprive the applicant of her legitimate claim. We also find from
record that prior to that the opposite party was the owner of another very good
flat in another posh area of Calcutta, namely Mayfair Road which also admittedly
he sold away in 1983 for an ostensible sum of Rs. 2,00,100/- and which according
to the applicant could reasonably fetch a price of Rs, 5,00,000/-

   .

   19. It is an undisputed position that the opposite party on his own showing
has investments in fixed deposits, unit trusts, company shares worth several
lakhs fetching interest as per shown statement of account in income tax returns
nearly 18 to 20 thousand per annum. These investments are not all from the sale
proceeds of the house properties as will be evident from income tax returns.

   20. There is a steady rate of flow of such earnings from such investments
irrespective of the question of sale or otherwise of real estates.

   21. The tax statements of opposite party show the salary income of Rs.
3,0007- only per annum. According to the opposite party he is employed
temporarily at a monthly salary of Rs. 1,0007- by the owner of "Rangana
Theatre". Whereas according to the applicant there is material suppression by
the opposite party on this account and the real salary income or for that matter
any such income is never disclosed by the opposite party. The best evidence in
this regard, the salary certificate, has not been produced by the opposite party
from his employer. The opposite party has admitted, however, as shown in income
tax returns that quite apart from salary income he has his extra earnings from
such professional side.

   22. There is abundant material or record i.e. the income statements, the deed
of conveyances, the statements in the respective affidavits and the surrounding
facts and circumstances to show that the opposite party lives in a modestly
affluent style maintaining a car and associating in club and cultural life which
cannot be had with a professed monthly income of Rs. 1,000/- only.

   23. The gross income of the opposite party as appearing in me income tax
statements is Rs. 26,410/- in 1984-85 and Rs. 21,5367- in 1985-86 i.e. relevant
period.

   24. In disposing of the application under Section 25 of the Hindu Marriage
Act, the Court is not only to take into consideration the income of the opposite
party but also his other assets in this connection as we have already seen. The
opposite party, at the relevant time had the gross annual income of Rs. 25,000/-
per month. Besides that he has investments worth several lakhs. Considering
everything, therefore, we proposed to grant in favour of the applicant by way of
permanent alimony a sum of Rs. 500/- per month. This amount consisting of 175th
of the gross annual income of the opposite party, we consider to be reasonable
and adequate for this purpose. The application of the appellant wife is disposed
of accordingly. The sum awardable by way of alimony is payable since the date of
application. The arrear be paid in six equal monthly instalments and the current
instalment is payable by the 15th of the next month.