Research › Browse › Judgment

Orissa High Court · body

1999 DIGILAW 382 (ORI)

BINODINI MAJHI v. RAM DAS MAJHI

1999-10-28

P.K.MISRA

body1999
P. K. MISRA, J. ( 1 ) THE wife has filed this civil Revision against the order of the Trial court rejecting her application for interim maintenance. She had filed O. S. No. 137/97 claiming maintenance at the rate of Rs. 4,000/-per month along with arrear maintenance. It was alleged by the petitioner in the plaint that the parties are members of tribal community and the marriage between the petitioner and the opposite party was solemnised as per Hindu rites and customs on 17-7-1991 During pendency of the suit, an application purporting to be one under Section 24 of the Hindu Marriage act was filed claiming maintenance pendente lite. The opposite party in written statement challenged the maintainability of the suit on the ground that the parties being members of scheduled Tribe, the suit under Section 18 of the Hindu Adoptions and Maintenance Act was not maintainable. The opposite party also challenged the maintainability of the application under Section 24 of the HINDU MARRIAGE ACT, 1955 on the very same ground and resisted the prayer for interim maintenance. ( 2 ) THE Trial Court rejected the application only on the ground that the parties being members of Scheduled Tribe were not governed by HINDU MARRIAGE ACT, 1955 and as such, provision of Section 24 of the Hindu Marriage act had no application. It further observed that the wife-petitioner can approach the proper court for getting maintenance under Section 125. Code of Criminal Procedure. The aforesaid order is being challenged in the present civil Revision. ( 3 ) THE parties are admittedly members of scheduled Tribe belonging to Santal community therefore, there cannot be any doubt that the provisions contained in the Hindu adoptions and Maintenance Act or provisions contained in the HINDU MARRIAGE ACT, 1955 are inapplicable in the absence of any Notification as contemplated in Section 2 of the Act. The learned Counsel for the petitioner also conceded that though initially the suit had been styled as one under Section 18 of the Hindu adoptions and Maintenance Act, subsequently the plaint has been amended and the suit is simply a suit for maintenance. ( 4 ) MUCH controversy has been raised on the aspect as to whether the parties are governed by orthodox Hindu Law even though they are not governed by the statutory Hindu law. ( 4 ) MUCH controversy has been raised on the aspect as to whether the parties are governed by orthodox Hindu Law even though they are not governed by the statutory Hindu law. The learned Counsel for the petitioner has cited the decisions reported in Langa manjhi and Others v. Jaba Majhian and Ors. ' and Dhanurjaya Kirsani v. Sulcra Kirsani and others2 in support of his contention that the parties are governed by traditional Hindu Law even though they are not governed by the statutory hindu Law. The learned Counsel for the opposite party has resisted such submission and contended that the question as to whether they are governed by traditional Hindu Law can be considered only by the Trial Court on the basis of evidence on recrod ( 5 ) FOR the purpose of deciding the present civil Revision, it is not necessary to decide this question, as the question can be disposed of by the Trial Court at the time of final decision in the suit. The question as to whether the wife is entitled to any interim maintenance during the pendency of the suit which has been filed for maintenance can be decided without considering the question whether parties are governed by traditional Hindu Law or by any other law. There is no law in any civilised nation which denies the right of maintenance to a married wife. Of course, depending upon the facts and circumstances of the case and particular law applicable to members of a particular religion or community, the incidents of such a right to claim maintenance may vary and under certain circumstances, the wife may be denied the right to claim maintenance. On the facts and circumstances of the present case, nothing specific has been pleaded by the husband to deny the right of maintenance which can be said to be an inherent right of every wife. ( 6 ) LAW is now well settled that during pendency of a suit for maintenance, the Court can grant interim maintenance in exercise of inherent power under Section 151, Code of civil Procedure. As a matter of fact, the petition styled under Section 24 of the HINDU MARRIAGE ACT, 1955 was misconceived, as the question of applying Section 24 in a suit for maintenance does not arise. As a matter of fact, the petition styled under Section 24 of the HINDU MARRIAGE ACT, 1955 was misconceived, as the question of applying Section 24 in a suit for maintenance does not arise. Even though the nomenclature of the petition was misconceived, the Court could have treated the same as one under section 151, Code of Civil Procedure, instead of rejecting the same on a technical ground. In such view of the matter, in normal course, I wguld have remitted the matter to the Trial court for fresh consideration on the question of interim maintenance. However, such a course is likely to prolong the agony of the petitioner. Instead of remanding the matter to the Trial Court for considering the question of interim maintenance, appropriate direction can be given in this Court in order to avoid further delay and harassment, particularly when the application for interim maintenance is pending since 1997. ( 7 ) IT is not disputed that the opposite party is an officer in the Bank. The petitioner has asserted that he is getting at least Rs. 13,000/- to Rs. 14,000/- per month. Of course, this is being denied by the opposite party. The petitioner has claimed Rs. 4,000/-as interim maintenance. The Counsel for the opposite party has submitted that the opposite party has to maintain other dependents. Without going into all these aspects, and having regard to the facts and circumstances of the case, 1 think a direction to pay a sum of rs. 1,500/- (Rupees one thousand and five hundred) per month as interim maintenance would serve the interest of justice. It is, however, made clear that if the suit lingers for considerable period, it would be open to the present petitioner to seek for enhancement of the quantum of interim maintenance by filing appropriate application before the Trial Court and such application shall be considered on its own merit by the Trial Court without being togged down by the fact that interim maintenance has been fixed by the High Court. The interim maintenance at the rate of Rs. 1,500/-per month shall be paid to the petitioner from the date of application in Misc. Case No. 124/97. The up-to-date arrears from the date of filing of Misc. The interim maintenance at the rate of Rs. 1,500/-per month shall be paid to the petitioner from the date of application in Misc. Case No. 124/97. The up-to-date arrears from the date of filing of Misc. Case No. 124/97 till end of october, 1999, shall be paid in four quarterly instalments, the first instalment being payable on 25th November, 1999, and other instalments being payable on 25th of every quarter thereafter. The current maintenance for the month of November shall also be paid by 25th of November, 1999 and maintenance of subsequent months shall be paid by 25th of each month. The suit shall be disposed of by the trial Court on the basis of evidence on record in accordance with law without being influenced by the fact that interim order of maintenance has been passed by the High Court in the Civil revision. The observations made in this revision being only prima facie observations should not weigh the Trial Court at the time of disposal of the suit. ( 8 ) THE Civil Revision is accordingly allowed. There will be no order as to costs. Revision allowed.