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Judgments of Supreme Court of India and High Courts

Sitaram S/O Anjanellu Gajala vs Sau. Kiran W/O Sitaram Gujala And … on 9 January, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Writ Petition No.74 of 2018
(Sitaram Gajala V Sau. Kiran Gujala and another)
————————————————————————————————————-
Office Notes, Office Memoranda of Court’s or Judges Order.
Coram, appearances, Court’s Orders
or directions and Registrar’s orders.
Mr. U.J. Deshpande, Counsel for petitioner.
Mrs. Smita Deshpande, Counsel (appointed) for respondents.

Coram : Manish Pitale, J.

Dated : 09th January, 2019.

By this Writ Petition, the petitioner (original defendant) has
challenged order dated 21-08-2017, passed by the Court of Joint Civil
Judge, Senior Division, Akola, whereby application filed by the respondents
for grant of interim maintenance has been partly allowed and the petitioner
has been directed to pay interim maintenance to the respondents of
Rs. 2000/- per month each.

2. The respondents herein filed Special Civil Suit No.30 of 2015,
under Sections 18 and 20 of the Hindu Adoption and Maintenance Act,
1956 (for short, ‘Act of 1956’), seeking maintenance from the petitioner. It
was contended that respondent no.1 (original plaintiff no.1) was the wife of
the petitioner and respondent no.2 (original plaintiff no.2) was the daughter
of the petitioner and that they were entitled to grant of maintenance under
the provisions of the said Act. The petitioner appeared before the Court
below and filed his written statement denying the relationship of
husband and wife with respondent no.1 and it was further denied that
respondent no.2 was his daughter. It was pointed out that the question of

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relationship between the petitioner and respondent no.1 had been already
adjudicated by the Competent Court as respondent no.1 had filed H.M.P.
No.151 of 1999, being an application for the Restitution of Conjugal Rights,
wherein the Competent Court had given specific finding that the
respondent no.1 had failed to prove that she was the legally wedded wife
of the petitioner. It was pointed out that the said judgment and order
passed by the Competent Court i.e. the Court of Civil Judge, Senior
Division, Akola, was challenged by respondent no.1 before the Court of
Principal District Judge, Akola, in Regular Civil Appeal No.150 of 2004,
wherein the aforesaid Appellate Court had dismissed the appeal and
specifically confirmed the findings rendered by the Court below. It was also
pointed out that the Appellate Court rendered a specific finding that
neither the petitioner nor respondent no.1 were Hindus.

3. By referring to the aforesaid orders passed by the said Courts,
the petitioner contended in his written statement before the Court below
that the suit filed by the respondents was not maintainable. It was further
pointed out that the petitioner was belonging to a tribal community and that
he was not a Hindu and therefore, the suit filed by the respondents under
the provisions of the Act of 1956, was clearly not maintainable. The
petitioner also opposed the application for interim maintenance filed by the
respondents in the aforesaid suit.

4. In the impugned order dated 21-08-2017, the Court below has
referred to a specific contention raised on behalf of the petitioner pertaining
to the earlier litigation between the parties and findings given by the
Competent Court that respondent no.1 was not the legally wedded wife of

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the petitioner. Yet, the Court below has not dealt with the said contention
of the petitioner and by simply referring to the monthly income of the
petitioner, a direction has been given in the impugned order to pay
maintenance of Rs. 2000/- per month each to the respondents. The
learned Counsel appearing for the petitioner has emphasized on the
aforesaid objections raised in the written statement and it has been
contended that in the absence of decision on the said objections, no order
of grant of interim maintenance could have been passed by the Court
below.

5. On the other hand, it is contended by the learned Counsel
appearing for the respondents that under the provisions of the Act of
1956, particularly Section 20 thereof, even illegitimate children are entitled
to maintenance and that even if the earlier litigation between the petitioner
and respondent no.1 is taken into consideration, the respondent no.2 could
not be deprived of her right of maintenance.

6. Heard Counsel for the parties. A perusal of the judgment and
order dated 28-09-2004, passed by the Court of Civil Judge, Senior
Division, Akola, in H.M.P. No.151 of 1999 and judgment and order dated
02-03-2007, passed by the Principal District Judge, Akola, in Regular Civil
Appeal No.150 of 2004, clearly shows that there is a finding rendered by
the Competent Court that respondent no.1 is not the legally wedded wife
of the petitioner. Admittedly, the said orders have attained finality. It is
also categorically held in the said orders that neither the petitioner nor
respondent no.1 are Hindus. Obviously, the said finding has also attained
finality. This aspect goes to the very root of the matter and has a direct

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bearing on the very maintainability of the suit filed by the respondents
before the Court below under the provisions of the Act of 1956.

7. In the absence of a finding on how the aforesaid earlier
findings rendered by the Competent Court would not come in the way of
the respondents in maintaining the suit filed by them before the Court
below, no order could have been passed on an application for grant of
interim maintenance by the Court below. As regards the right of
respondent no.2, even if she considered to be an illegitimate child, to
maintenance under Section 20 of the Act of 1956, a perusal of the section
shows that a “Hindu” is bound during his life time to maintain his
illegitimate children. The said provision would apply only when a finding is
rendered that the petitioner is a Hindu. This takes us back to the question
as to how an order of interim maintenance could be passed in favour of
respondent no.2 without first rendering a finding on the specific objections
raised by the petitioner in his written statement before the Court below
pertaining to his and respondent no.1 not being Hindus. This further
demonstrates that the Court below could not have passed the impugned
order directing grant of interim maintenance to the respondents.

8. In the light of the above, it is found that the impugned order is
unsustainable. Accordingly, the present Writ Petition is allowed. The
impugned order dated 21-08-2017, is quashed and set aside. The Court
below is directed to decide Special Civil Suit No.30 of 2015, expeditiously
and the amount deposited by the petitioner in the Court below in terms of
order dated 09-01-2018, is directed to be kept in deposit with the Court
below subject to final orders in the aforesaid suit.

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9. Needless to say the Court below shall decide the suit on its
own merits without being influenced by the observations made in the
order passed by this Court.

10. It is made clear that all questions on merits are kept open.

11. Since the Counsel appearing for the respondents is appointed
through Legal Aid, the fees of the learned Counsel is quantified at
Rs. 5000/-.

JUDGE
Deshmukh

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