A Hindu wife can claim maintenance from her husband or his family members even after the Hindu Women's Right to Property Act, 1937 came into force. However, she cannot enforce both the rights for maintenance and partition simultaneously.

JUDGMENT :

G.K. Misra, J. - Jagnasini (Plaintiff) filed an application in the Court of Munsif, Sonepur, under Order 33, Rule 2, CPC for permission to sue as a pauper. Alongwith the application a copy of the plaint was filed. She pleaded that she was married to Narayan Misra, son of Basant (Defendant-I) and his wife Khirabati (Defendant-2). The marriage took place at village Lupursingha within the jurisdiction of Munsif, Sonepur, where the parents of the Plaintiff and now she reside. She and Narayan lived as husband and wife for two years when Narayan died in Jyestha 1953. A schedule of the properties was attached to the plaint showing that the joint family consisting of Defendant-1 and Narayan has 68.02 acres of land in village Rabidi within the jurisdiction of Munsif, Boudh, where the Defendants reside. She claimed two reliefs, namely, maintenance at the rate of Rs. 400/ - per annum, or in the 'alternative, partition of the suit lands in two equal shares, one half being allotted to her after demarcation. She averred that after the death of her husband, she continued to reside with the Defendants; but due to their ill-treatment, she lived in her father's house in 1956. When she wanted to come back, Defendants refused to entertain her.

During the course of an inquiry into pauperism, Defendants raised an objection that the Munsif, Sonepur, had no

I jurisdiction to entertain the suit. After hearing the learned advocates for the parties, the learned Munsif held that he had no jurisdiction to grant the relief for partition but had jurisdiction to grant the relief for maintenance. On this view he held that be had jurisdiction to try the whole suit. He accordingly overruled the objection as to want of jurisdiction. Against this order, the civil revision has been filed by the Defendants.

2. The following questions arise for consideration:(i) Has the Munsif, Sonepur, jurisdiction to try the suit for maintenance when the Defendants do not reside, and the properties are not situate, within his jurisdiction?

(ii) Has the Munsif jurisdiction to entertain the suit for partition?

(iii) (a) Is the Plaintiff entitled to maintenance when she is entitled to partition under Hindu Women's Right to Property Act, 1937 (hereinafter referred to as the Act)?

(b) If so, can both the reliefs for maintenance and partition be alternatively granted?

(iv) What course is the Court to adopt when one of the reliefs cannot be granted as being outside its jurisdiction.

3. Law is now we settled that a suit for separate maintenance by a Hindu wife against her husband can be instituted in the place where the parties were married as marriage forms a part of the cause of action? See K. Vajravelu Mudaliar Vs. Rajalakshmi Ammal, and Chandrawati Vs. L. Suraj Narain. Mr. Rath however wants to distinguish these cases on the ground that therein the maintenance was claimed by the wife against the husband whereas, in this case, the maintenance is claimed against the father-in-law and the mother-in-law where marriage does not constitute a part of the cause of action. There is no substance in this contention and the distinction pointed out is not based on any principle of law.

Section 20(c), CPC lays down that subject to the limitations prescribed in Sections 15 to 19, every suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, arises. In Mst. Chand Kaur v. Partab Singh L.R. 15 IndAp 156, their Lordships observed as follows-

Now the cause of action has no relation whatever to the defence which may be set up by the Defendant, nor does it depend upon the character of the relief prayed for by the Plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the Plaintiff asks the Court to arrive at a conclusion in his favour.

In a suit for maintenance, marriage is the primary fact to be alleged and proved. The fact of marriage constitutes an integral p