Madhya Pradesh High Court
Sachchanand Wadhwani vs Smt. Nisha And Anr. on 23 November, 1989
Equivalent citations: AIR1990MP247, I(1992)DMC605, 1990(0)MPLJ52, AIR 1990 MADHYA PRADESH 247
ORDER K.L. Shrivastava, J.
1. This revision petition u/Section 115 of the C.P.C. (for short the 'Code') is directed against the order dated 28-9-1988 by the IVth Addl. Judge to the District Judge, Indore in M. J. C. No. 21/1986 whereby interim maintenance in the sum of Rs. 300/- per month has been granted to the N. As.
2. Circumstances giving rise to this revision petition are these: The N. A. No. 1 is the widow of the petitioner Sachchanand's deceased son Pritamanand, who dies on 16-9-1985. The N. A. No. 2 Punitanand aged about 5 1/2 years is the son of N.A. No. 1. After her widowhood, the N. A. No. 1 together with N.A. No. 2 is residing with her father in Jairampura Colony, Indore.
3. The N. As. on 23-4-1986 filed an application u/Section 19 of the Hindu Adoptions and Maintenance Act. 1956 (for short the 'Act') against the present petitioner who is resident of Jai Jagat Colony, Indore, claiming maintenance at the rate of Rs. 1,000/- per month.
4. According to N. A. No. 1, she was married to Pritamanand in June, 1983 and out of this we-lock, the N. A. No. 2 was born in April, 1984. In Sept., 1985 Pritamanand suddenly died and after about 2 to 3 months of the death of Pritamanand, the petitioner started harrassing the N.As. In the circumstances, on 27-11-85 the N. A. No. 1 together with the N. A. No. 2, with bare clothings left her Husband's house and started living with her father Karamveer and her mother Parmeshwari.
5. In the application it has been stated that Pritamanand along with his brother and the N. A. No. 1 constituted a Joint Hindu Family. He was running a partnership firm under the name and style of M/s. Best Products Corporation, Sanver Road, Indore and with the profits thereof the joint family property was purchased. He was also carrying on money lending business and with his one lack rupees and his own money, the petitioner carried a money lending business.
6. Regarding the status of the parents of the N.A. No. 1 it was stated that her brother and the sister work in the Bank and with their earnings it. is with difficulty that the house hold expenses of the family of the N. A. No. 1's father is being maintained.
7. Subsequently, by amendment it has been stated that the mother of the N. A. No. 1 died on 29-7-1988.
8. During the pendency of the application u/Section 19 of the 'Act'; the N. As. filed an application for grant of interim maintenance.
9. The application was opposed by the petitioner on various grounds. According to the petitioner the Act contains no provision for grant of interim maintenance, and though in relation to Section 125 of the Code of Criminal Procedure, 1973, the Apex Court of the country has recognised to Court's power to grant interim maintenance, no such main tenance can be granted under the 'Act'. It is urged that it was in the context of the object behind the enactment of Section 125 of the Code that the power was recognised. It is further urged that the liability of the father-in-law u/Section 19 of the 'Act' is dependent on several conditions and as those conditions do not exist and the right to claim maintenance is being contested, there can be no question of grant of interim maintenance. In support of this submission reliance was placed on the decisions in Aboobucker's case, AIR 1958 Madras 287 and G. Appanna's ;case, AIR 1972 Andh Pra.
10. The contention of the learned counsel for the N.As. is that on principle the power to grant interim relief is well recognised. It is urged that in granting interim relief only a prima facie entitlement has to be found, and there can be no prejudging of issues.
11. The point for consideration is whe ther the revision petition deserves to be allowed.
12. On a, careful consideration of the submissions made by the learned counsel for the parties in the context of the documents and the affidavits on record. I fine that the impugned order is proper and does not call for any interference.
13. Section 19 of the Act' may usefully be reproduced. It reads thus:-
19. Maintenance of widowed daughter-in-law:-- (1)A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law :
Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or. where she has no property of her own, is unable to obtain maintenance -
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
(2) Any obligation under Sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.
In the context, power to grant interim maintenance has to be recognized.
14. The applicant has in his affidavit dated 30-7-88 stated that the N.A. No. 1 is working in the Bombay Pharma Products and is earning Rs. 800/- per month and that she was being maintained by her parents. Therein it has been further stated that the N.A: No. 1 has inherited movable and immovable property of her mother. The will of 27-7-72 executed by the mother tells a different tale.
15. The N.A. No. 1 has filed her affidavit dated 30-7-86 and has also filed affidavits of Pohumal Nanakram, Kishanchand, Lakmichand and her brother Atmaprakash, she has denied that she has any earning. According to her, her brother and sister work in the Bank and with their earning the family of her father is being maintained. From a perusal of para 6 of the application Under Section 19 of the Act it is clear that the claim under the Insurance Policy in favour of the N.A. No. 1's deceased husband and the assets of the Firm M/s. Best Products Corporation, Indore, are in litigation. In para 9 of the aforesaid application it has been stated that the petitioner has in his possession Rupees One Lakh belonging to deceased Pritamanand and with that sum and his own money he carries on money lending business.
16. As regards the import of the expression 'Coparcenary Property' occurring in Section 19(2) of the 'Act', the majority view of the Full Bench in Gurudip Kaur's case, AIR 1965 Punjab 238 is that it means the property which consists of ancestral property or joint acquisition or, property thrown into the common stock and a accretions to such property. Keeping in view the context in which the expression has been used. I am inclined to hold that the aforesaid interpretation of the term is the proper one.
17. The observations in Aboobucker's case, (AIR 1958 Madras 287) (supra) on which the reliance has been placed by the learned counsel for the petitioner, pertain to Order 39, Rule 1 of the Code and run thus :
"An interim relief is granted to a person on the footing that that person is prima facie entitled to the right on which is based the claim for the main relied as well as the interim relief. That relief is granted as an interim measure till the disposal of the suit in which is to be investigated the validity of the claim of right that has been put forward. If no such claim has been put forward in the suit, it means that there can be no occasion for investigation of such a claim in the suit, there can be no justification for the grant of an interim relief which will just lapse on the termination of the suit, but which will leave the parties in the same position in which they were before the institution of the suit, in the course of which the interim relief was sought and obtained.
There can be no quarrel with what has been stated in the above extract. In the instant case, however, it cannot be held that the N.A. No. 1 has no prima facie case, for maintenance Under Section 19 of the 'Act' enforceable against the petitioner who is her father-in-law.
18. The weight of probability is in favour of the N.A. No. 1. It appears that she was forced to leave her husband's home without any property.
19. It has also to be remembered that the revisional jurisdiction Under Section 115 of the Code is not only limited in scope but is also discretionary.
20. As a result of foregoing discussion, I find no exception can be taken to the impugned order and no interference therewith in exercise of this Court's revisional jurisdiction is called for. In the result, the petition fails and is dismissed with costs. Counsel's fees Rs. l00/- if certified.