Gulab Singh & Another vs Smt. Manorama Devi And Others on 8 May, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

Civil Revision No. 89 of 2015.

Reserved on: 19.04.2017.

.

Date of Decision: 8th May, 2017.

Gulab Singh another …..Petitioners.

Versus

Smt. Manorama Devi and others ….Respondents.

Coram

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Petitioners: Mr. Sunil Mohan Goel,
Advocate.

For the Respondents : Mr. G.D. Verma, Senior

Advocate with Mr. B.C. Verma,
Advocate.

Sureshwar Thakur, Judge.

The instant Civil Revision Petition is directed

against the impugned order recorded by the learned

Additional District Judge, Solan, H.P., on 04.04.2015,

whereby, he granted interim maintenance to Miss Ridhima

and Miss Sidhima, the minor daughters of deceased Sanjay

Shandil, interim maintenance whereof is comprised in a

sum of Rs. 3000/- each per month.

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2. The learned counsel appearing for the

petitioners has with much vigour contended that the

reason assigned by the learned trial Court for granting

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interim maintenance in favour of the aforesaid minor

daughters of deceased Sanjay Shandil, is ridden with a

pervasive taint of illegality, comprised in want of statutory

provisions apposite thereto standing engrafted in the

Hindu Adoption and Maintenance Act (hereinafter referred

to as the “Act”).

3. Contrarily, the learned counsel appearing for

the respondents, for validating the impugned

pronouncement recorded by the learned Additional District

Judge, relied upon a decision rendered by the Hon’ble Apex

Court in Rajesh Burman versus Mitul Chatterjee

(Burman), (2009)1 SCC 398, wherein, the Hon’ble Apex

Court, has while making an in depth analysis of the

provisions of the Act, has pronounced that irrespective of

want of any statutory provisions standing engrafted in the

Act, for leveraging a claim of the plaintiffs’ for interim

maintenance, yet the husband is entailed with an

obligation pay interim maintenance to the aggrieved,

“only” with respect to monetary sums covering expenses

incurred by her towards her medical treatment. Relevant

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paragraph No.30 of the judgment supra stands extracted

hereinafter:-

“30. Recently in Ajay Saxena v. Rachna Saxena, AIR

2007 Del 39, analysing the provisions of Hindu

.

Adoptions and Maintenance Act, 1956, the Court

held that in a suit under Section 18 of the Act, the

wife can claim interim maintenance. It was further

held that such interim maintenance may also cover

expenses incurred towards medical treatment.

Obligation of the husband to pay such expenses

cannot be deferred till final adjudication of the suit.

Nor can husband avoid obligation to pay further sum

to his wife towards medical reimbursement on the

ground that the amount of interim maintenance

being passed included entire expenses on medical

treatment. (See also Mangat Mal v. Punni Devi,

(1995)6 SCC 88)”

(….P.406)

4. The innate nuance of the verdict pronounced by

the Hon’ble Apex Court in Rajesh Barman’s case (supra),

does leverage the espousal of the aggrieved, to claim

interim maintenance from her husband, yet the clout of

the pronouncement is restricted for validating only those

claims of interim maintenance which cover “only” the

expenses incurred by the aggrieved towards hers medical

treatment also obviously, the grant of interim

maintenance vis-a-vis the aggrieved plaintiffs’ dehors no

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statutory provisions apposite thereto standing engrafted in

the Act, is with a further implied rider that the liability

thereof being fastenable only upon the surviving husband

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of the aggrieved. The learned counsel appearing for the

READ  Shakune Gowda vs Smt Dyavamma on 27 March, 2017

respondents, has also relied upon a pronouncement made

by the Hon’ble Bombay High Court in Atul Shashikant

Mude vs. Niranjana Atul Mude, AIR 1998 Bombay

234, wherein, the Hon’ble Bombay High Court has

recorded an explicit judicial mandate that absence of any

express provisions in the “Act”, with respect to the grant of

interim maintenance would not be either fatal to the

success of an application “filed” for grant of interim

maintenance by the aggrieved plaintiff during the

pendency of the “suit” nor curtails the power of the Civil

Court to rely upon the provisions of Section 151 of the

Code of Civil Procedure, conspicuously, when there is no

express prohibitive provision, cast in the apposite statute

against rendition of affirmative orders by the Civil Court

upon an apposite application for grant of interim

maintenance.

5. Apparently, both the decisions as relied upon

by the learned counsel appearing for the respondents, do

succor his submission that there occurs no absolute bar

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upon Civil Courts against theirs granting relief of ad

interim maintenance to the aggrieved plaintiffs, yet the

occurrence of a visible graphic fact as borne in the

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pronouncement(s) recorded in the aforesaid citations, fact

whereof, is constituted by the pronouncements

aforestated fastening the apposite liability upon the

surviving husband of the aggrieved plaintiff, “whereas”,

the impugned order hereat occurring with respectively the

husband and the father of the aggrieved not surviving.

Contrarily, also when the extant claim for interim

maintenance, in a suit constituted under the Act, is reared

against the estate of the predeceased husband of plaintiff

No.1/respondent No.1 herein, rather hence, brings to the

fore, an apparent distinctivity inter se the factual scenario

READ  Devkishan vs Smt.Kanku on 2 May, 2017

existing in the aforesaid citations vis-a-vis the factual

scenario prevailing in the instant case. Also in their suit,

the plaintiffs foist their claim for maintenance against the

estate of their predecessor-in-interest, foisting whereof is

averred to be holding an aura of tenability, arising from

the fact of the estate of their predecessor-in-interest

holding traits and characteristics of it being construable to

be ancestral coparcenary property, wherein,on his demise,

they obviously hold an indefeasible right to inherit it. The

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sequel of the aforesaid manner, of rearing by the

plaintiff(s), of their apposite claim upon the estate of their

predecessor-in-interest, comprised in the fact of it holding

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besides partaking the traits of ancestral coparcenary

property, fact whereof remains not firmly denied by the

defendants, thereupon, with no personal claim for

maintenance being reared by the plaintiffs upon the salary

or income derived from the respective avocations of the

defendants also when the fact of the estate of the

deceased holding the tinge of it being construable to be

ancestral coparcenary property, hence, theirs holding a

right to inherit it along with the defendants, remains not

firmly denied by the contesting defendants. The obvious

corollary thereof is, hence, when from the estate of the

deceased, obviously, income may accrue to the plaintiffs,

in aftermath, awaiting the plaintiffs’ acquiring through

inheritance the estate of their predecessor-in-interest, it

was insagacious for the learned trial Court, to make an

order for grant of ad interim maintenance with respect to

the aggrieved concerned also it was insagacious for the

learned trial Court, to, order for the grant of interim

maintenance being satisfied from the salary of the

defendants and from not the profits earned by them from

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the estate of their predeceased son, whereupon, hence as

aforestated, they prima facie untenably stand fastened

with a liability to personally satisfy the mandate of the

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order granting interim maintenance. The reason for

forming the aforesaid conclusion, is, for reiteration besides

for emphasis earned by the trite fact of its being in stark

dichotomy with the plaintiffs rearing in their suit, a claim

for maintenance against the defendants, claim whereof is

harboured upon the fact of theirs holding the estate of

their predecessor-in-interest, estate whereof holds or

partakes the trait of it being construable to be an ancestral

coparcenary property, wherein they hold a right to inherit

it, fact whereof remains not firmly denied by the

defendants. Corollary whereof, is on the plaintiffs

inheriting the estate of their predecessor-in-interest, they

READ  Jaspreet Kaur @ Seema vs Gurpreet Singh on 30 May, 2017

may rear an income therefrom, whereupon, their claim in

the suit may suffer frustration. Sequel whereof, is of the

impugned order being prima facie construable to stand

rendered in a post haste manner, also with the learned

trial Court remaining oblivious tot he impact of the

aforestated pleaded factum.

6. Be that as it may, as aforestated, the clout of

the pronouncement of the Bombay High Court made in

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Atul Sashikant Mude’s case (supra), “save and except”

that dehors want of statutory provisions apposite thereto

standing engrafted in the Act, the Civil Court(s) holding

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jurisdictional empowerment to award interim maintenance

upon the aggrieved plaintiffs, “is immensely diluted” by a

subsequent pronouncement thereto recorded by the

Hon’ble Apex Court in Rajesh Burman’s case (supra),

wherein, contrarily, the Hon’ble Apex Court has restricted

the grant of ad interim maintenance vis-a-vis the

aggrieved only with respect to it being confined to cover

the expenses incurred by the spouse upon her medical

treatment. Hence, obviously with the verdict of the

Bombay High Court recorded in Atul Sashikant Mude’s

case (supra), hence, holding no prevalence with respect to

the facts at hand, conspicuously when the aggrieved

plaintiffs do not within the ambit of the verdict of the

Hon’ble Apex Court in Rajesh Burman’s case (supra) claim

interim maintenance confined to cover expenses incurred

towards their medical treatment also rather when their

claim is directed purportedly towards the income reared

by the petitioners/defendants from the estate of the

deceased husband of plaintiff No.1, thereupon, also the

impugned order directing the apposite liability being

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satisfied from the income reared by the defendants from

their respective avocations,hence, warrants interference.

7. Apart from the aforesaid discussion, the learned

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trial Court had merely dwelt upon the contention(s) reared

in the pleadings of the respective parties. The learned

trial Court has not either struck issues on the relevant

pleadings nor has asked for adduction of evidence

thereon. Consequently, imputation of credence by it to

the pleadings of the plaintiffs is also unwarranted.

8. For the foregoing reasons, the instant Civil

Revision Petition is allowed and the impugned order is

quashed and set aside. The parties are directed to appear

before the learned trial Court on 8th June, 2017. The

learned trial Court is directed to conclude the trial of Civil

Suit within six months. All pending applications also stand

disposed of. Records be sent back forthwith.

(Sureshwar Thakur)

8th May, 2017 Judge.
(jai)

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