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Nemai Chand JaIn Vs. Smt. Lila Jain - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 241 of 1966
Judge
Reported inAIR1968Cal405,73CWN78
ActsCode of Civil Procedure (CPC) , 1908 - Section 151
AppellantNemai Chand Jain
RespondentSmt. Lila Jain
Appellant AdvocateP.K. Das, Adv.
Respondent AdvocateM.G. Chakrabarty, Adv.
DispositionAppeal dismissed
Cases ReferredAuten v. Rayner
Excerpt:
- .....for other reliefs. 4. counsel for the respondent contended that the court had no jurisdiction to grant interim maintenance. in aid of that proposition reliance was placed on the bench decision in md. abdul rahman v. tajunnissa begum, reported in : air1953mad420 and the decision in mulimani sanna basavarajappa v. basavannappa, reported in air 1959 mys 152. in the madras bench decision the appellant was directed to pay to the respondent a sum of rs 500 by way of intering maintenance pending disposal of the suit. the respondent alleged that the appellant had married her. the plaintiff filed an application for an award of interim maintenance during the pendency of the suit. the defendant denied that he married the plaintiff. it is said in the madras bench decision that to grant any relief.....
Judgment:

Ray, J.

1. This appeal is from an order of Sen J. dated 16th September, 1966 by which it was ordered that the plaintiff would be entitled to interim maintenance of Rs. 350 per month from the defendant.

2. Upon appeal being preferred from that order, the appellate court by an order dated 16th January, 1967 directed that a sum of Rs. 250 per month instead of Rs. 350 per month would he paid. That order was made on an interlocutory application during the pendency of the appeal.

3. The plaintiff instituted the suit against the defendant for arrears of maintenance as also maintenance at the rate of Rs. 1500 per month and declaration that the maintenance to be awarded would form a charge on the properties of the defendant and for other reliefs.

4. Counsel for the respondent contended that the Court had no jurisdiction to grant interim maintenance. In aid of that proposition reliance was placed on the Bench Decision in Md. Abdul Rahman v. Tajunnissa Begum, reported in : AIR1953Mad420 and the decision in Mulimani Sanna Basavarajappa v. Basavannappa, reported in AIR 1959 Mys 152. In the Madras Bench Decision the appellant was directed to pay to the respondent a sum of Rs 500 by way of intering maintenance pending disposal of the suit. The respondent alleged that the appellant had married her. The plaintiff filed an application for an award of interim maintenance during the pendency of the suit. The defendant denied that he married the plaintiff. It is said in the Madras Bench decision that to grant any relief in an interim application would be to grant the relief which can properly be granted by the ultimate determination of the suit and the decree following thereon. It is also said that the Civil Procedure Code confers certain powers on the Court to grant relief in interim proceedings as for example, injunctions, attachment before judgments or appointment of receivers. No power was conferred on the Court to grant interim relief by way of maintenance The Madras Bench decision further held that if the claim of the plaintiff was hotly contested in the suit it would be without jurisdiction to grant any interim relief by way of interim maintenance.

5. In Mulimani's case AIR 1959 Mys 152 in a suit for paitition, the minor plaintiff claimed to be a son of the defendant and the defendant denied that the plaintiff was his son and contested his right to claim partition. It was said that the Court could not grant under Section 151 of the Code any interim relief by awarding interim maintenance.

6. Counsel for the plaintiff-respondent on the other hand relied on a laterMadras decision in Muniammal v. P. M. Ranganatha Nayagar reported in : AIR1955Mad571 . The Madras Bench decision in : AIR1953Mad420 was considered and the learned Judge held that the ratio decidendi of the Madras Bench decision in : AIR1953Mad420 is that interim maintenance could not be granted in a suit where the status and the right of the claimant was hotly contested supported by a volume of prima facie evidence documentary and circumstantial. It is also said in Muniammal's case, : AIR1955Mad571 that it was not meant that whenever the contesting defendant made a denial of the claim of the plaintiff interim relief would he denied.

7. The plaintiff in the present case instituted a suit for arrears of maintenance and future maintenance. The plaintiff has given affidavit evidence of her marriage. The plaintiff has giver documentary evidence. That documentary evidence consists of photographs of the plaintiff and the defendant being photographed together. These photographs show the intimacy that the plaintiff claims with the defendant. The plaintiff has also produced documentary evidence in the shape of letters written by the defendant to the plaintiff. One of these letters at page 62 of the paper book shows the defendant to be writing to the plaintiff-

'.........I want that you be a goodhousewife, what is your duty to your husband what is now our age, what is the financial position of your husband, whether he is happy or sad if husband is happy then wife should also be happy and if husband is sad then how ran wife be happy, you should live within husband's income. How are husband and children to spend their lives for this you will have to think.........'

8. Prima facie case has been described by Lord Evershed M.R. in the case of Auten v. Rayner (1958) 3 All ER 566 at p. 568 to mean no more than a case which calls for an answer In the present case the plaintiff on the affidavit evidence and the documentary evidence has in my opinion, succeeded in establishing a prima facie case with overwhelming documentary evidence in the hand-writing of the defendant describing or addressing the plaintiff to be a wife It is true that the defendant disputes the status. Mere denial unsupported by any evidence on behalf of the defendant as opposed to assertion by the plaintiff supported by corroborative photographic evidence and corroborative documentary evidence in the handwriting of the defendant, in my opinion, tilts the scale in favour of the plaintiff and proves a prima facie case which merits interim relief in favour of the plaintiff in aid of the suit The jurisdiction of the court is attracted by filing a suit The court has power to make interlocutory orders in aid of a suit Denial of status does not take away the jurisdiction of the court. Interim maintenance is not an actof exercise of inherent jurisdiction. Interim maintenance is granted as an interlocutory relief in the suit.

9. To allow a defendant the bald plea of denial of status in the face of letters written by the defendant, in the face of photographs showing the plaintiff and the defendant in intimate relationship would be to allow a prima facie case to be thwarted at the hands of a designing defendant. The device of a denial for the sake of suggesting that the court has no jurisdiction to grant interim maintenance is to strike at the root of administration of justice and more so in a case where the plaintiff who claims to have lived with the defendant as husband and wife for years is now deserted by the defendant and is treated by the defendant as a woman without any status. It would allow injustice to be perpetrated by mere deliberate act of denial by the defendant.

10. The learned Judge was right in his conclusion in awarding interim maintenance There has been some modification of the amount. At some stage it was suggested that if the plaintiff went on receiving interim maintenance and if at the trial it appeared that the plaintiff was not entitled to any sum of money the amount would be lost. The learned Judge directed early hearing of the suit. It is open to both parties to have the suit heard. Just because the defendant suggested that there is a possibility of the plaintiff losing the suit the fact cannot be overlooked that the prima facie case of the plaintiff establishes that she is entitled to be maintained. I am therefore of opinion that the order of the learned Judge as was modified by the appellate court on an interlocutory application fixing the interim maintenance at Rs. 250 should remain.

11.The appeal is dismissed. The order fixing the amount of maintenance at Rs. 350 is modified and substituted by the figure Rs. 250. The rest of the order of the learned Judge is affirmed. Costs of the appeal will be costs in the suit

12. The previous order that we made on 10th July, 1967 was recalled because counsel For the appellant wanted us to re-hear the matter and we allowed them opportunity to make further submissions Having heard the parties we make the following further order

13. Cross order for discovery by Friday next inspection forthwith thereafter and the suit to appear at the top of the Prospective List on 31st July, 1967 Liberty toapply.

14. Their will he an injunction restraining the plaintiff from transferring, encumbering or disposing of her property mentioned at page 121 of the paper book. It is recorded that Mr. Chakrabarty's client denies that she possesses any house onfive cottahs of land at Sonapur as mentioned in the affidavit of Nemi Chand.

S. K. Mukherjea, J.

15. I agree .


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