Punjab-Haryana High Court
Charanjit Kaur And Anr. vs Darshan Singh on 28 January, 2005
Equivalent citations: I(2005)DMC661, (2005)139PLR791
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiff is in revision petition aggrieved against the order passed by the first Appellate Court granting ad-interim maintenance on an application filed by the respondents for the grant of maintenance under the Hindu Maintenance and Adoption Act, 1956 (hereinafter referred to as the Act).
2. The petitioners sought maintenance of Rs. 5000/- per month by creating charge on the land measuring 68 kanals 14 marlas on the ground that they have no movable and immovable property and that they have no means to sustain themselves. It is alleged that the marriage of the petitioner No. 1 was solemnised with Jaswinder Singh son of the defendant, present respondent on 4.5.1997. Out of the said wed lock, petitioner No. 2 Inderjit Singh son was born. After the death of Jaswinder Singh in foreign country, petitioner No. 1 was forced to contract Kareva marriage with Jit Singh but since she did not agree she was given beating and was turned out of the house. In reply it was stand of the defendant that petitioner No. 1 has contracted second marriage with Jit Singh and is residing with him at village Nihaluwal.
3. During the pendency of such petition for maintenance, plaintiffs moved an application for the grant of ad-interim maintenance. The learned trial Court dismissed the said application relying upon a judgment of this Court reported as Makhan Singh v. Jagdish Kaur and Ors., (1991-2)100 P.L.R. 324 that there is no specific provision for the grant of interim maintenance and thus the application is not maintainable. The appeal was also dismissed on the ground that though the court has wide discretion to grant interim relief while exercising inherent powers under Section 151 of the Code of Civil Procedure but declined interim maintenance for the reason that the petitioner No. 1 has not filed replication to rebut the allegations of the respondent that she has contracted second marriage with Jit Singh. Still further it has been round that the suit for maintenance has been filed by plaintiff No. 1 by concealing true facts as plaintiff No. 1 has not pleaded that she has not inherited the estate of her father after his death although the mutation was produced to show his estate of his father has been sanctioned in favour of Jasbir Singh brother of petitioner No. 1. Therefore, the first Appellate Court found that the main suit for the recovery of maintenance as an indigent person was filed by concealing true facts.
4. Firstly, the learned counsel for the petitioner has argued that the finding given by the first Appellate Court that the petitioner No. 1 would be deemed to have contracted second marriage with Jit Singh for non-filing of replication is wholly erroneous. It is contended that any finding regarding performing of kareva marriage with Jit Singh can be returned only on the basis of evidence led before the learned trial Court as it is the categorical case of the plaintiff in the plaint itself that she has not performed kareva marriage with Jit Singh. Non-filing of replication will not raise any presumption. It is further argued that even it is prima facie found that the petitioner No. 1 has performed kareva marriage the petitioner No. 2 would in any case would be entitled to maintenance.
5. The said argument raised by the learned counsel for the petitioner could not be disputed by the learned counsel for the respondent in any plausible manner. The parties are not ad-idem on the question of kareva marriage with Jit Singh. Such question has thus necessarily to be decided on the basis of evidence which may be led during the course of trial. No finding can be returned against the plaintiff only for the reason that the replication has not been filed. Filing of replication is not mandatory for the plaintiff, the failure of which would entitle the court to raise a presumption against the plaintiff. Therefore, the said reasoning given by the first Appellate Court is wholly unjustified.
6. The other argument that the plaintiff has not disclosed that she inherited the estate of her father is again without any merit. The father of plaintiff No. 1 having died, the plaintiff was not required to plead in negative that she has not inherited any property. It is for the defendant to plead and prove that the plaintiff is not an indigent person and has inherited property but the plaintiff cannot be non-suited to claim interim maintenance only on the ground that the plaintiff has not pleaded that she has not inherited the estate of her rather. The reasoning given by the learned first Appellate Court is wholly unjustified and is not sustainable in law. Consequently, the said finding is also reversed.
7. However, the learned counsel for the respondent vehemently argued that the application for ad-interim maintenance is not maintainable. Reliance was placed on a Single Bench judgment of this Court reported as Makhan Singh v. Jagdish Kaur and Ors., 1992 Civil Court Cases 29.
8. On the other hand the learned counsel for the petitioner relied upon Division Bench judgment of this Court Puran Singh and Ors. v. Mst. Har Kaur and Anr., 1970 Current Law Journal 648: as well as Single Bench judgment of this court reported as Kanwar Vishwajit Singh v. Smt. Nirmala Kanwar and Anr., (1991-2)100 P.L.R. 277; Antu Ram v. Usha Rani and Ors., 2002(2) Civil Court Cases 80: as well as a judgment of Patna High Court reported as Ram Narain Mahta and Ors. v. Phul Kumari Devi and Ors., 1990 Civil Court Cases 106 (Patna): and Sachchahand Basharam Wadkwani v. Nisha and Anr., 1990 C.C.C. 440. Madhya Pradesh wherein it has been held that the civil Court has the jurisdiction to grant ad-interim maintenance in proceedings under Hindu Adoption and Maintenance Act. Reference was also made to a judgment of Supreme Court reported as Smt. Savitri v. Govind Singh Rawat, A.I.R. 1986 S.C. 984 where the Court was interpreting the provisions of Section 125 contained in Chapter IX of the Criminal Procedure Code, 1973 (hereinafter referred as the Code). It has been held in the said judgment, that there is a implied power with the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay a reasonable sum by way of maintenance to the applicant pending final disposal of the application.
9. A perusal of the various judgments referred to by the learned counsel for the parties shows that Makhan Singh's case (supra) is in fact based upon another judgment of this Court reported as Sodagr Singh v. Harbhaj Kaur, (1977)79 P.L.R. 506 and a judgment of Andhra Pradesh High Court reported as Gorivelli Appanna v. Goriveli Seethamma, A.I.R. 1972 A.P. 62 and Ramchandra Behera and Ors. v. Smt. Shehalata Dei, A.I.R. 1972 Orissa 96. However, the previous judgments of this Court including the Division Bench judgment in Puran Singh's case was not brought to the notice of the Court. Still further, the judgment relied upon in the said judgment have been considered and dissented by this Court in Kanwar Vishwajit Singh v. Smt. Nirmala Kanwar and Anr., (1991-2)100 P.L.R. 277.
10. In view of the binding precedent laid down by the Division Bench of this Court as well as the principles laid down by this Court in earlier judgments the Court has implied power to grant ad-interim maintenance during the pendency of the petition under Section 19 of the Hindu Adoption and Maintenance Act. The observations of Hon'ble Supreme Court while interpreting the provisions of Section 125 Cr.P.C. in Smt. Savitri's case (supra) are applicable to the facts of the present case with equal force. It has been held that in the absence of any express prohibition, in Chapter IX of the Code, it is appropriate to construe the provision as conferring implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance. The Supreme Court even recognised the jurisdiction to grant an ad-interim maintenance. It was held to the following effect:
"In view of the foregoing it is the duty of the Court to interpret the provisions in chapter IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ubi a liquid conceditur, conceditur et id sine quo res ipsa esse non protest (where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means so subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist. It is quite possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties. The Magistrate may, however, insist upon an affidavit being filed by or on behalf of the applicant concerned stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order."
11. From the principles of law laid down in the aforesaid judgment of the Hon'ble Supreme Court as well as the judgments referred to by the learned counsel for the petitioner, it is held that the power to grant maintenance is recognised in the proceedings under Section 19 of the Hindu Adoption and Maintenance Act, 1956.
12. The next question which is relevant is the quantum of maintenance payable to the petitioners during the pendency of suit before the trial Court. Both the courts have not returned any finding on such quantum. Therefore, as an interim arrangement without prejudice to the rights of the parties, the respondent is directed to pay monthly maintenance at the rate of Rs. 2500/- to both the petitioners keeping in view the agricultural land measuring 68 kanals 14 marlas owned by the respondent, payable from the date of the filing of the revision petition i.e. 1.3.2004. Such maintenance is purely ad-interim to provide immediate help to the petitioners to enable them to sustain themselves with liberty to the trial Court to reassess the amount of maintenance after assessing the income of the respondent. The learned Trial Court shall quantify the amount of maintenance without being influenced by the amount of maintenance so ordered by this Court.
13. The parties through their counsel are directed to appear before the learned Trial Court for further proceedings in accordance with the law on 17.3.2005.