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
.
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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4statutory 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
.
of the aggrieved. The learned counsel appearing for the
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
.
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
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
.
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
.
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
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
.
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
.
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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