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Yashvant Singh and anr. Vs. Kumari Sandhya - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 139/1981
Judge
Reported in1981WLN339
AppellantYashvant Singh and anr.
RespondentKumari Sandhya
DispositionPetition dismissed
Cases Referred and Muhammed v. Sulekha
Excerpt:
.....& illegitimate daughters aro dependents and entitled to interim maintenance--court can grant interim maintenance under section 151.;under section 21, unmarried daughter and illegitimate daughter are dependents and entitled to maintenance under section 22 of the act and so, interim maintenance could be granted to the plaintiff. the conclusion to which, i have arrived at is that in a suit under the act for grant of maintenance, the court can invoke inherent powers under section 151 cpc to grant interim maintenance.;civil procedure code - section 115--revision--court exercing its jurisdiction erroneously--held, it does not act illegally or with material illegality.;where court exercises its jurisdiction in the manner prescribed or fact, it does not act illegally or with material..........the plaintiff) was his second wife. it was also submitted that there is no provision in the act to grant interim maintenance.4. the learned civil judge by his order dated february 6, 1981 granted interim maintenance as aforesaid. hence this revision.5. i have heard the learned counsel for the petitioners and have also perused the order under revision.6. it was sterneously contended by the learned counsel appearing for the petitioners that no interim maintenance can be granted under section 151 cpc during the pendency of a suit under the act for grant of maintenance.7. this question cropped up before a learned single judge of this court in inder mal v. babulal . in that case, on behalf of the defendants. gopal seran v. sita devi air 1974 pat 69, abdul rehman v. tajunnisa begum air 1953.....
Judgment:

S.K. Mal Lodha, J.

1. This revision petition under Section 115 CPC has been filed by the defendant-petitioners against the order dated February 6, 1981 of the Civil Judge, Jodhpur, by which, he directed the defendants to pay interim maintenance at the rate of Rs. 250/- per month from the date of the application dated October 15, 1979 to the plaintiff-non-petitioner on the condition that the next friend of the minor plaintiff furnishes a security for the return of the amount so received in the event of the suit being dismissed.

2. The plaintiff-non-petitioner Sandhya through her next friend instituted a suit against the defendant-petitioners under Section 22 of the Hindu Adoptions and Maintenance Act (No. 78 of 1976) (for short 'the Act hereafter) averring that she is the daughter of late Anand Singh Kachhawa by his second wife Smt. Sheela Devi. Anand Singh died on April 2, 1977. Anand Singh bequathed his properties by a Will to the petitioners who are in their possession after his death. The plaintiff claimed maintenance at the rate of Rs. 500/- per month.

3. An application under Section 151 CPC was moved on behalf of the plaintiff on October 15, 1979 for the grant of interim maintenance. The defendants resisted the application on various grounds. The principal ground was that the plaintiff is neither the daughter of Anandsingh nor Smt. Sheela Devi (mother of the plaintiff) was his second wife. It was also submitted that there is no provision in the Act to grant interim maintenance.

4. The learned Civil Judge by his order dated February 6, 1981 granted interim maintenance as aforesaid. Hence this revision.

5. I have heard the learned Counsel for the petitioners and have also perused the order under revision.

6. It was sterneously contended by the learned Counsel appearing for the petitioners that no interim maintenance can be granted under Section 151 CPC during the pendency of a suit under the Act for grant of maintenance.

7. This question cropped up before a learned single Judge of this Court in Inder Mal v. Babulal . In that case, on behalf of the defendants. Gopal Seran v. Sita Devi AIR 1974 Pat 69, Abdul Rehman v. Tajunnisa Begum AIR 1953 Mad 423. K.S. Danavarajappa v. Basavannappa AIR 1959 Mys 152, Venkataratnom v. Kamla AIR 1960 Ors 157. and G. Appanna v. G. Sesthonman : AIR1972AP62 were relied on. On the other hand, on behalf of the plaintiff. Jain v. Jain : AIR1968Cal405 , Tarini Gupta v. Gauri Gupta : AIR1968Cal567 . Rukmeni Ban v. Narmada : AIR1962Guj227 , Muninmal v. Ranganatha Nayagar : AIR1955Mad571 , D. Udayar v. Rajarani Anmal : AIR1973Mad369 and Surendra Kumar v. Kamlesh : AIR1974All110 were cited. The learned Judge in paras 18 and 19 of the report observed as under:

18. If there is no provision of law permitting the Court to grant interim maintenance, then whether the power to grant interim maintenance can be invoked under its inherent powers. The law was laid down in unambiguous terms in (1852) ILR 5 All 163(FB) that every procedure in permitted unless it is forbidden by law. The procedure is always designed to observe the purpose of justice and is always aimed at enhancement of rendering substantial justice.

19. Grant of maintenance allowance is always aimed at preserving the existence of an individual who is supposed to be not in a position to support himself. Though, there is no express provision of law in the Hindu Adoptions and Maintenance Act, 1936 for grant of interim maintenance allowance, yet there is no prohibition against such an interim relief being granted. As held in D. Udayar v. Rajarani Anna : AIR1973Mad369 , the powers to make an interim order is implicit, ancillary and a necessary corollary of the power to entertain a suit and pass final orders thereon.

The learned Judge summarised his conclusion in the following words:.I have no hesitation in holding that the Court has inherent powers to grant interim maintenance in suitable cases. The grant of such interim relief does not in any way prejudice the substantial rights of the parties. To hold otherwise would mean that the very purpose of the suit might be frustrated as the plaintiff-petitioner might not be able to sustain the proceedings due to want of means. In this view of the matter, I find myself in respectful agreement with the cases in Tarini Gupta v. Gauri Gupta. : AIR1968Cal567 and D. Udayar v. Rajarani Anmal. : AIR1973Mad369 .

Learned Counsel appearing for the petitioner has placed reliance on Ramchandra v. Snehlata Devi AIR 1977 Ors. 96, wherein most of the cases referred to in Inderpal's case were noticed. In that case, learned Judges of the Orissa High Court dissented from Jain's case : AIR1968Cal405 . I respectfully agree with the view taken by the learned single Judge in Indermal's case . I am unable to subscribe to the view taken by the learned Judges of the Orissa High Court in Ramchandra's case AIR 1977 Ors 96 and with great respect follow Smt. Gauri Gupta Choudhary v. Tarani Gupta Chaudhary : AIR1968Cal305 , Jain's case AIR 1968 405, Yarini Gupta's case : AIR1968Cal567 . The court has power to grant maintenance under the Act. Section 151 CPC can be invoked by the Court for making order in relation to administration of justice. The Court, in my opinion, has always inherent power to make orders for interim maintenance in the interest of justice. When the jurisdiction of a Court is attracted by filing a suit the Court has power to make interlocutory orders in aid of the suit. I am disposed to think that interim maintenance is not an act of exercise of inherent jurisdiction but it is granted as an interlocutory relief in the suit. Such order does not have the effect of conferring any substantive right of maintenance.

8. The defendants have denied that the plaintiff is the daughter of late Anand Singh Kachhawa. Suffice it to state that such denial would not take away the jurisdiction of the Court to grant interim relief. In suitable cases, the Court has power to grant interim maintenance, for the jurisdiction of the Court does not depend on the denial of a case by the defendant. The Court may decline to make an order for interim maintenance on the facts and circumstances of a particular case but that how ever does not mean that it has no jurisdiction to make an order because the right is contested.

9. Dependents have been defined in Section 21 of the Act. The material portion of Section 21 of the Act reads as under:

(i) ... ... ...(ii) ... ... ...(iii) ... ... ...(iv) ... ... ...(v) his or her unmarried daughter, or the unmarried daughter of his predeceased son or the unmarried daughter of a predeceased son of his predeceased son so long as she remains unmarried; provided and to the extent that she is unable to obtain maintenance in the case of a grand daughter from her father's or mother's estate and in the case of a great grand father from the estate of her father or mother or father's father of father's mother.

(vi) ... ... ...(vii) ... ... ...(viii) ... ... ...(ix) his or her illegitimate daugher, so long as she remains unmarried.

Section 22 of the Act provides for maintenance of dependents. Under Section 21, unmarried daughter and illegitimate daughter are dependents and entitled to maintenance under Section 22 of the Act and so, interim maintenance could be granted to the plaintiff. The conclusion to which, I have arrived at is that in a suit under the Act for grant of maintenance, the Court can invoke inherent powers under Section 151 CPC to grant interim maintenance. The first contention raised by the learned Counsel for the petitioners is, therefore, rejected.

10. It was next argued by the learned Counsel appearing for the petitioners that the plaintiff-non-petitioner is not the daughter of late Anand Singh Kachhawa. In this connection, he referred to A. Gunnah Rao v. Tara 1971 Cr. L.J. 1044, Durairaju vs, v. Neela 1976 (2) Cr. L.J. 1507, and Muhammed v. Sulekha 1981 Cr. L.J. (NOC) 40.

11. In the case on hand, the learned Civil Judge, after taking into consideration the material on record, which was before him, recorded the following conclusion:

Esi sthiti men mere vicharse Mst. Sandhya Anandsingh se utpan Mst. Sheela ki santan Hai, Aur vah Antarim Gujara Pane ki Adhikari Hai.

I am not satisfied that this conclusion is not based on relevant material on record. It is a finding of fact. It is not open to challenge in the revision petition. The authorities relied on by the learned Counsel for the petitioner in this regard have no bearing on the facts and circumstances of this case and thus, they are of no avail to the petitioner. I am of opinion that this finding cannot be disturbed in revision as it is well settled that where Court exercise its jurisdiction in the manner prescribed but arrives at a conclusion which is erroneous in law or fact, it does not act illegally or with material irregularity but decides erroneously in the proper exercise of jurisdiction. The second contention is also devoid of force.

12. It may be mentioned here that the quantum of maintenance was not challenged before me by the learned Counsel appearing for the petitioners.

13. No other point survives for my consideration in this revision petition.

14. The revision petition is dismissed summarily.


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