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Subash Chandra Biswal Vs. Maluni Biswalo - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 406 of 1983
Judge
Reported inAIR1985Ori284; 1985(I)OLR485
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151; Hindu Marriage Act, 1955 - Sections 24
AppellantSubash Chandra Biswal
RespondentMaluni Biswalo
Appellant AdvocateB.B. Ratho, ;Manoj Misra, ;R.P. Mohapatra and ;P.K. Bhuyan, Advs.
Respondent AdvocateS. Misra (2), ;B. Das and ;A. Misra, Advs.
DispositionRevision dismissed
Cases Referred(Gajapati Naik v. Dukhnashini Naik
Excerpt:
.....ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - when in such a suit 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 to the wife in exercise of power under section 151 before disposal of the suit on the other hand in a suit by the wife for maintenance (such as the instant one) where only the claim to maintenance is contested and the relationship between the spouses is not in challenge and there is no exceptional circumstance of a prima facie nature against such relationship, the jurisdiction under..........98/80 before the subordinate judge, aska, against the petitioner and his parents with a prayer to grant maintenance at the rate of rs. 300/- per month and some other reliefs. written statement was filed wherein relationship of the parties was not disputed; but the contest was on various other grounds. in tke said suit, the opposite parties filed a petition under section 24 of the hindu marriage act read with section 151, c.p.c. praying for interim maintenance at the rate of rs. 300/- per month and litigation expenses of rs. 500/-. the trial court considered the petition and allowed rs. 75a per month as interim maintenance and rs. 300/- as litigation expenses vide order dated 23-3-1983. this order has been challenged in this revision on the ground that the court has no jurisdiction under.....
Judgment:
ORDER

J.K. Mohanty, J.

1. Opposite Parties 1 and 2, the wife and minor daughter respectively of the petitioner, filed Title Suit No. 98/80 before the Subordinate Judge, Aska, against the petitioner and his parents with a prayer to grant maintenance at the rate of Rs. 300/- per month and some other reliefs. Written statement was filed wherein relationship of the parties was not disputed; but the contest was on various other grounds. In tke said suit, the opposite parties filed a petition Under Section 24 of the Hindu Marriage Act read with Section 151, C.P.C. praying for interim maintenance at the rate of Rs. 300/- per month and litigation expenses of Rs. 500/-. The trial court considered the petition and allowed Rs. 75A per month as interim maintenance and Rs. 300/- as litigation expenses vide order dated 23-3-1983. This order has been challenged in this revision on the ground that the court has no jurisdiction Under Section 18 of the Hindu Adoptions and Maintenance Act to grant interim maintenance and the quantum of the interim maintenance has not been properly assessed. On the other hand, on behalf of the opposite parties 1 and 2 it has been submitted that the court has ample power Under Section 151, C.P.C. to grant interim maintenance.

2. In support of the contention that the court has no power to grant interim maintenance, learned counsel appearing for the petitioner cited a decision of this Court reported in AIR 1977 Orissa 96 (Ramchandra Behera v. Smt. Snehalata Dei) which relied on two earlier decisions reported in AIR 1973 Mad 369 and AIR 1972 Andh Pra 62. In theabove decision of this Court, it has been observed (at p. 100) :--

'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.'

3. In a recent decision of this Court reported hi AIR 1984 Orissa 166 (Gajapati Naik v. Dukhnashini Naik) it has been held :--

'It is not correct to say that in a suit by the wife against the husband for maintenance Section 151 has absolutely no application to a claim for payment of interim maintenance. When in such a suit 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 to the wife in exercise of power under Section 151 before disposal of the suit On the other hand in a suit by the wife for maintenance (such as the instant one) where only the claim to maintenance is contested and the relationship between the spouses is not in challenge and there is no exceptional circumstance of a prima facie nature against such relationship, the jurisdiction under Section 151 to award interim maintenance is available to be exercised.

In this case the relationship between the husband and wife is not challenged and the wife and the minor daughter are to sustain themselves. In view of the above position, I am of the opinion that the petition Under Section 151, C.P.C. is maintainable. In this case the trial Court has found that opposite parties 1 and 2 have no means to support them. Opposite party No. 1 has also filed an affidavit to the effect that the salary of the petitioner who is working in a mill at Surat is about Rs. 500/-per month. Considering the facts and circumstances of the case, the trial court has granted interim maintenance at the rate of Rs. 75/- per month and has also granted Rs. 300/- as litigation expenses. This, in my view, is not high or excessive and, therefore, I do not want to interfere. This revision is dismissed. There shall be no order as to costs.


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