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Sm. Shyamali Sarkar vs Ashim Kumar Sarkar on 18 September, 1987
Cites 25 docs - [View All]
The Hindu Marriage Act, 1955
Section 25 in The Hindu Marriage Act, 1955
Section 19 in The Hindu Marriage Act, 1955
Section 9 in The Hindu Marriage Act, 1955
The Limitation Act, 1963
Citedby 3 docs
Santam Banerjee vs Sachindra Nath Banerjee on 28 September, 1989
Smt. Santana Banerjee vs Sachindra Nath Banerjee on 28 September, 1989
Shri Gobardhandas Damji Parmar ... vs State Of West Bengal And Others on 26 April, 1993

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Kolkata High Court
Equivalent citations: AIR 1988 Cal 124, 92 CWN 659
Bench: A Bhattacharjee, A K Nayak

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.