Kerala High Court
R.B. Gurubasavaiah vs M.G. Prema on 15 June, 1992
Equivalent citations: II(1992)DMC520
JUDGMENT Vasantha Kumar, J.
1. Heard the learned Counsel for the petitioner.
2. The Court below has passed an ex-parte order granting interim maintenance at the rate of Rs. 400/- per month and directed the 1st-defendant to pay the same:
3. The interesting question that arises for consideration is about widow's right to maintenance and liability of coparceners from out of the estate of the joint family ? The principles have been nicely stated in the treatise on Hindu Law by Mulla. In the Joint family governed by Mitakshara law, the right to maintenance is inherent quality of their right of coparcenery or common property and this right to maintenance begins and ceases where coparcenary ceases. The Manager of Mitakshara Joint family in possession of Joint family property is bound to maintain all its members male and famale and the widows and children of deceased coparceners out of the income of corpus of the joint family property. This obligation is always commensurate with the possession of family property. Widow of coparcener is entitled to maintenance from the estate of her deceased husband in the hands of his surviving coparceners even if she had been deserted by her husband, even if she had been living away from her husband without justifiable cause provided this right is conditional upon her continuing to be a widow and leading life of chastiy and is lost when she marries or becomes unchaste.
4. Regarding quantum of maintenance: The amount of which a widow is entitled to recover for maintenance includes not only that which is sufficient for her food, clothing and residence but also an amount necessary for the comfort and maintenance of her position as her husband's surviving half In fixing rate of maintenance to be paid to a widow in joint family the income of the family at the time of the institution of the suit and not on the date of husband's death is to be taken into consideration is the date. Maintenance awardable to a Hindu widow depends upon gathering together of all the facts of the situation, the amount of free estate, the past life of married parties and families, a survey of the condition and necessities and rights of members on a reasonable view of change of circumstances, possibly required in the future regard had to the scale and mode of living and to the age, habit, wants and class of life of the parties. It is out of great category of circumstances, small in themselves that a safe and reasonable induction is to be made by a Court of law in arriving at any fixed sum. The test in determining the allowance is whether the scale is suited to her husband's position in life.
5. The sum awarded must enable the lady to live consistently with the position of a widow in something like the same degree of comfort and with the same reasonable luxury of the life as she had in her husband's lifetime provided that sum awarded does not exceed the annual profits on the share to which the husband would have been entitled on partition if living.
6. The coparceners of her deceased husband who have taken his properties by survivorship have no right to prescribe any arbitrary standard as regards the comforts the widow is entitled to have or the style in which she should live. It is not open to them to say that even though they are getting a large income from family properties, as they are living frugally widow also must be content with the barest necessities of life. The Shastraic Injunction that the widow's life would be one of austerity and semi-starvation is not a legal injuction and ought not be considered at all.
7. The value of her husband's family estate and its income and reasonable wants of the widow including her religious expenses and the portion and status of deceased husband should all be taken into consideration in arriving at the amount to be awarded. Hindu widow in no case would be entitled to an amount in excess of her husband's share on partition. In assessing the amount any Stridanam possessed by widow should also be taken into consideration. Even if Stridanam property is enough for her maintenance the widow is still entitled to maintenance, though not the same amount of maintenance to which she will be entitled if she had no Stridanam property at all and she cannot be deprived of maintenance.
8. Hindu Widow is not bound to reside with the relatives of her husband, the relatives of her husband have no right to compel her to live with them and she does not forfeit her right to property or maintenance merely on account of her going and residing with her family or separately or leaving her husband's residence from any other cause than unchaste and improper purposes. Unless there is waiver or abandonment of her right to maintenance by the widow she is entitled to maintenance from the death of her husband. As a rule, widow cannot claim arrears of maintenance for the period from her husband's family unless she was kept under circumstances of extreme penury and oppression. However, she is entitled to arrears from the time, she changes her residence, and under no circumstances can the right be post-dated from the institution of suit for maintenance. The amount of maintenance is liable to be increased with the increase in the value of the estate or the cost of living or decreased with the reduction in the value of the estate or its income due to causes beyond the holders control.
9. In the instant case, the reasoning advanced by the trial Court regarding granting maintenance is as follows.
"The plaintiff has also filed I.A.II for interim maintenance. According to the affidavit annexed to the said I.A.II the plaintiff has stated on oath that after the death of her father-in-law the defendents have practically sent her out of the house. It is also stated in the para-3 of the affidavit that the defendants have even stopped giving food and shelter to the plaintiff. According to the plaintiff all the properties mentioned in the suit schedule are the joint family properties and her husband has 5th share in the same. On the perusal of the schedule 'A' it appears that the family of the defendants has substantial properties. Under the circumstances of the case the learned Counsel for the plaintiff has prayed for ex-parte orders as per I.A.No.II for awarding interim maintenance at the rate of Rs. 500/- per month. The learned Counsel for the plaintiff was unable to cite any case law or authority under which it was stated that the Court could grant ex-parte interim relief of maintenance.
However, it is well established principle of law that a Civil Court has jurisdiction to pass any order under Section 151 C.P.C. to meet the ends of justice. Admittedly, there is no other provision under which this Court can act. From the circumstances of the case stated by me above it certainly appears that plaintiff is in dire trouble. Under the circumstances, I am of the view that this Court can properly exercise powers vested under Section 151 of C.P.C. and issue exparte orders for paying interim maintenance to the plaintiff, Hence, the following:
Order Issue summons and notice of I.A.II to the defendants. Defendant No. 1 is hereby directed to pay interim maintenance at the rate of Rs. 400/-per month from the date of this order till the disposal of I.A.II on merits."
It is also stated in paragraph-3 of the Affidavit along with I.A.II by the plaintiff "that after the death of Basavaiah, defendants started hostile attitude towards me and objected to take food and shelter in the joint family. However, with great difficulty I managed till 1-6-1991. I demanded partition expressing my desire to separate on 15-(not clear) 1991 but the defendants refused the same. I am the legally wedded wife of Shankarlingappa R.B. and I am entitled to get 1/5th share and also maintenance. I have been completely deprived of the enjoyment of the joint family income." It is to be noted that the ex-parte order of maintenance has to be passed only on sound principles of law and not on surmises and conjunctures and it should be a reasoned order as giving reasons is one of the fundamentals of good administration of justice. Having in view of the various factors that have to be weighed before granting maintenance, the trial Court's order cannot be legally sustained. The Trial Court is directed to take into consideration the observations made above and after a detailed enquiry, the Court may fix the amount towards maintenance.
10. Accordingly, this C.R.P. is allowed. The trial Court is directed to dispose of I.A.II as expeditiously as possible preferably within a period of 2 months from the date of receipt of this order.