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Jadumani Padhan Vs. Kumudini Padhani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 45 of 1982
Judge
Reported inAIR1986Ori10
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18(2)
AppellantJadumani Padhan
RespondentKumudini Padhani
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateSujata Das, Adv.
DispositionRevision dismissed
Cases ReferredK. Venkataratnam v. Kakinda Kamala
Excerpt:
.....when the conditions prescribed in sub-section (2) of section 18 of the hindu adoptions and maintenance act are satisfied and until the wife proves a prima facie case in her favour, she is not entitled to any interim maintenance. 4. there cannot be any dispute with the proposition that a hindu wife is entitled to claim for separate residence only if the conditions prescribed in sub-section (2) of section 18 of the hindu adoptions and maintenance act thereinafter referred to as the 'act') are satisfied and in that event she would be also entitled to maintenance......rs. 300/- per month.3. mr. p. k. misra, the learned counsel for the petitioner, contends that a hindu wife is entitled to live separately from her husband and get maintenance only when the conditions prescribed in sub-section (2) of section 18 of the hindu adoptions and maintenance act are satisfied and until the wife proves a prima facie case in her favour, she is not entitled to any interim maintenance. in this particular case, the husband (defendant) having challenged his liability to pay maintenance and the wife's entitlement to have separate residence, the subordinate judge had no jurisdiction to grant interim maintenance at this stage. in support of his aforesaid contention, the learned counsel placed reliance on a decision of this court in the case of k. venkataratnam v......
Judgment:

G.B. Patnaik, J.

1. This revision is directed against the order of the Subordinate Judge, Bargarh, dt. 23-11-1981 wherein the petitioner has been directed to pay interim maintenance at the rate of Rs. 300/- per month to the wife opposite party.

2. The wife filed Title Suit No. 80 of 1979 for separate residence and maintenance and during the pendency of the suit filed an application for interim maintenance. The husband, the present petitioner, filed objection to the said petition challenging the maintainability of the same and further challenging the quantum claimed by the wife. The Subordinate Judge after examining the materials on record has directed by the impugned order that the petitioner-husband would pay Rs. 300/- per month.

3. Mr. P. K. Misra, the learned counsel for the petitioner, contends that a Hindu wife is entitled to live separately from her husband and get maintenance only when the conditions prescribed in Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act are satisfied and until the wife proves a prima facie case in her favour, she is not entitled to any interim maintenance. In this particular case, the husband (defendant) having challenged his liability to pay maintenance and the wife's entitlement to have separate residence, the Subordinate Judge had no jurisdiction to grant interim maintenance at this stage. In support of his aforesaid contention, the learned counsel placed reliance on a decision of this Court in the case of K. Venkataratnam v. Kakinda Kamala, AIR 1960 Orissa, 157. In the aforesaid decision, a learned single Judge of this Court held that before the suit is heard on merits and in the absence of any prima facie case in her favour, the wife would not be entitled to any interim maintenance particularly when the husband had challenged the allegations in the plaint.

4. There cannot be any dispute with the proposition that a Hindu wife is entitled to claim for separate residence only if the conditions prescribed in Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act thereinafter referred to as the 'Act') are satisfied and in that event she would be also entitled to maintenance. It is also true that until and unless the wife establishes a prima facie case in her favour, no interim maintenance could be granted by the Court during the pendency of the suit. But in this particular case, an important document was produced before the trial Court in course of the hearing of the miscellaneous case for grant of interim maintenance which has been exhibited as Ext. 1. The said document has been executed by the husband and it indicates that the husband has married for the second time though with the consent of the wife since the first wife did not be get any child. In view of the aforesaid document, prima facie the plaintiff has been able to establish that her case is covered by Section 18(2) of the Act In that view of the matter, the order of the Subordinate Judge granting interim maintenance cannot be said to be without jurisdiction.

5. Mr. Misra for the petitioner does not challenge the quantum of maintenance granted by the Subordinate Judge.

6. In the result, therefore, I do no find any merits in this revision which is accordingly dismissed, but in the facts and circumstances of the case, there would be no order for costs.


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