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Gajapati Naik Vs. Dukhnashini Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 503 of 1980
Judge
Reported inAIR1984Ori166
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151; Hindu Adoptions and Maintenance Act, 1956 - Sections 18 and 23; Code of Criminal Procedure (CrPC) , 1974 - Sections 125
AppellantGajapati Naik
RespondentDukhnashini Naik and ors.
Appellant AdvocateJ.P. Misra, Adv.
Respondent AdvocateR.K. Mohapatra, Adv.
Cases Referred(Ramchandra Behera v. Smt. Snehalata Dei
Excerpt:
.....is no exceptional circumstances of a prima facie nature against such relationship the jurisdiction under section 151, c. in the present case, the court below should have determined the quantum of the annual income of the petitioner before allowing the application for interim maintenance but he failed to do so. as such the direction of the learned subordinate judge to pay rs 300/- per month appears to be arbitrary and the contention of the learned counsel for the petitioner on this point is well founded......in the said suit the opposite parties also filed a petition under section 151, c. p. c. claiming interim maintenance at the rate of rs. 300/-per month (rs. 200/- for the wife and rs. 50/- for each of the childern). the said petition having been allowed by the learned subordinate judge by his order dated 13-5-1980, this revision petition has been filed by the petitioner,2. in their application for interim maintenance the opposite parties averred inter alia that dukhanashini (opp. party no. 1) is the legally married wife of the petitioner and praphula and kalyani (opp, parties 2 and 3) are the two children born out of their wedlock, that the petitioner ill-treated them and drove them out of his house some time in december, 1975 and since then they are living in the house of the father of.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The claim to interim maintenance by the wife and the two minor children of the petitioner is the subject matter in this revision petition. The opposite parties, the wife and the two minor children of the petitioner, filed Title Suit No. 50 of 1978 in the Court of the Subordinate Judge, Bargarh against the petitioner for realisation of Rs. 23,700/- towards maintenance. The petitioner in his written statement admitted the relationship but contested the claim on various grounds. In the said suit the opposite parties also filed a petition under Section 151, C. P. C. claiming interim maintenance at the rate of Rs. 300/-per month (Rs. 200/- for the wife and Rs. 50/- for each of the childern). The said petition having been allowed by the learned Subordinate Judge by his order dated 13-5-1980, this revision petition has been filed by the petitioner,

2. In their application for interim maintenance the opposite parties averred inter alia that Dukhanashini (Opp. party No. 1) is the legally married wife of the petitioner and Praphula and Kalyani (Opp, Parties 2 and 3) are the two children born out of their wedlock, that the petitioner ill-treated them and drove them out of his house some time in December, 1975 and since then they are living in the house of the father of the opposite party No. 1 completely at his mercy. They further alleged in the said petition that the petitioner after driving out the opposite parties from his house married one Bedamati and has been leading a conjugal life with her in the same house. Even he has settled some lands belonging to the family in favour of Bedamati but has made no arrangement for the maintenance of the opposite parties. The opposite parties further stated that since they have no independent source of income to meet their minimum necessities an order for interim maintenance may be passed by the Court.

The petitioner in his objection to the said application for interim maintenance denied the allegations made in the application filed by the opposite parties. He stated that he is ready and willing to take the opposite parties to his company and maintain them within the resources at his disposal. He further stated that he is a poor man and has no other source of income excepting only 2.71 acres of land and it will be extremely difficult on his part to pay any interim maintenance.

3. Both the parties filed affidavits and documents in support of their averments made by them. The learned Subordinate Judge on a consideration of the materials allowed the application for interim maintenance as stated above.

The impugned order is challenged on the following grounds:--

(i) the Court below has no jurisdiction to exercise powers under Section 151, C. P. C. to grant interim maintenance;

(ii) the court below has not considered the affidavit of Mukta Pradhan filed on behalf of the petitioner and hence the order is vitiated : and

(iii) the quantum of interim maintenance has not been properly ascertained.

In support of his contention t hat the Court has not jurisdiction to grant interim maintenance under Section 151, C. P. C. the learned counsel for the petitioner has placed reliance on the decision of Madras High Court in the case of (Mohomed Abdul Rahman v. Tajunnissa Begum) AIR 1953 Mad 420, wherein it has been laid down that in a suit for maintenance by the wife where a claim is hotly contested, an order for payment of interim maintenance is without jurisdiction and a decision of the Andhra Pradesh High Court in the case of (Gorivelli Appanna v. Gorivelli Seethamma), AIR 1972 Andh Pra 62, which following the aforesaid Madras decision has held that the Court has no power to award interim maintenance under Section 151, C. P. C. since Section 18 of Hindu Adoptions and Maintenance Act does not authorise the award of interim maintenance pending decision of suit in which the very claim to maintenance is in contest.

Both the aforesaid decisions and several other decisions on the point came to be considered by a Division Bench of this Court in the case of (Ramchandra Behera v. Smt. Snehalata Dei), AIR 1977 Orissa 96. The conclusion arrived at by the Court has been summed up as follows (at p. 100):--

'We are inclined to agree with the ratio indicated by the Madras High Court in the case reported in AIR 1953 Mad 420, as laying down the ordinary rule. We agree that there may be cases where taking the extraordinary aspects into consideration, the Court may proceed to exercise inherent powers to grant interim relief. It is not appropriate to set limitations on Court's inherent powers by indicating circumstances where it can be and where it cannot be exercised.'

In view of the enunciation of the law by the Division Bench, it cannot be said that Section 151, C. P. C. has absolutely no application to a claim for payment of interim maintenance. The ratio of the principles laid down in various decisions which have been discussed in this case indicates that whet* the very relationship between the husband and wife is in challenge or there is an order or decree annulling the said relationship it is not a fit case for grant of interim maintenance in exercise of power under Section 151, C. P. C. before disposal of the suit. On the other hand, in cases where the relationship between the spouses is not in challenge and there is no exceptional circumstances of a prima facie nature against such relationship the jurisdiction under Section 151, C. P. C. is available to be exercised. This is clear-from the decision of the Division Bench wherein it is observed: 'In the case before us, there is a decree staring against the Plaintiff and the marital relationship has been judicially terminated. The burden lies on the plaintiff to extricate herself for the bar of res judicata by proving want of territorial jurisdiction of the Court passing the earlier decree and by establishing perpetration of fraud in the matter of obtaining the decree. Until she is able to establish these, the decree of divorce binds her and she cannot be taken any longer to be a wife. We find that the husband has already married. In this setting it would not at all be appropriate to sustain the order of grant of interim maintenance.

The Calcutta High Court, on the other hand has not accepted the view taken by the Madras High Court and has held that the power under Section 151, C. P. C. is available to be exercised for grant of interim maintenance in appropriate cases (AIR 1968 Cal 305, AIR 1968 Cal 405 and AIR 1968 Cal 567). It has even gone in the extent of saying that the court has jurisdiction to grant interim maintenance as an interlocutory relief in the suit without taking the aid of Section 151, C. P. C.

4. In view of the discussion madeabove and the position of law as enunciated by the Division Bench of thisCourt the contention raised by the learned counsel for the petitioner that thecourt below has no jurisdiction to grantinterim maintenance since the suit formaintenance is being contested is devoidof merit.

5. The second contention raised by the learned counsel for the petitioner that the affidavit of Mukta Pradhan filed in support of his case has not been considered by the learned Subordinate Judge is equally without force. The learned Subordinate Judge in para 3 of his order has referred to the affidavit of Mukta Pradhan and has taken the same into consideration.

The only other contention of the petitioner which remains to be considered is regarding the quantum of maintenance. The learned counsel for the petitioner has pointed out from the order of the court below that there is practically no discussion regarding any material to indicate the income of the petitioner. While the opposite parties averred that the petitioner is entitled to l/3rd out of 16.90 acres which is the total extent of land held by the family, the petitioner denied this assertion and asserted that ha has only 2.71 acres of land in his possession. The court below observes that Mukta Pradhan in his affidavit states that the petitioner has sold 3.20 acres of land to one Sabitri Bhoi on 30-3-78 and has delivered possession thereof. But the learned Subordinate Judge without coming to any finding regarding the income of the petitioner has arbitrarily allowed the claim of the opposite parties in toto and has directed the petitioner to pay Rs. 300/- per month as interim maintenance.

6. It is needless to stress that in a proceeding for maintenance the quantum is an important factor. In order to determine the quantum, it is necessary for the Court to find out the respective income of the parties and the means they have. The compensation to be paid to the wife and children should bear a reasonable relation to the income of the husband. What is a reasonable amount will differ from case to case.

In the present case, the court below should have determined the quantum of the annual income of the petitioner before allowing the application for interim maintenance but he failed to do so. I called upon the learned counsel for the, opposite parties to point out the materials, if any, on record, which may help to determine the income of the petitioner. He could not point out any such material excepting pointing out that the lands held by the petitioner are situated in Bargarh area and are capable of yielding double crops. It would be erroneous to jump to the conclusion from these facts that the petitioner had sufficient moans to pay a sum of Rs. 300/-per month towards interim maintenance. As such the direction of the learned Subordinate Judge to pay Rs 300/- per month appears to be arbitrary and the contention of the learned counsel for the petitioner on this point is well founded.

7. In the premises discussed above, while rejecting the various contentions raised on behalf of the petitioner regarding the right of the opposite parties to claim interim maintenance and the court's jurisdiction to grant the same, I would set aside the order fixing Rs. 300/-per month, as maintenance. The learned Subordinate Judge is directed to reconsider the question of the amount to be paid as interim maintenance to the opposite parties after giving the parties an opportunity to produce materials on this print only. The parties are directed to appear before the learned Subordinate Judge on 13-2-1984 to receive appropriate direction. The matter will be disposed of within one month.


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