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2000 DIGILAW 506 (ORI)

LAXMAN MURMU v. DUMNI MURMU

2000-11-07

A.S.NAIDU, PRADIPTA RAY

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ORDER 1. Heard Mr. Mishra, learned Counsel for the Appellant and Mr. Mohanty, learned Counsel for the Respondent. 2. The civil appeal has been preferred by the Appellant- husband inter alia challenging the order of the Judge, Family Court, Rourkela, allowing a petition filed by the wife u/s 18 of the Hindu Adoption and Maintenance Act and directing the Respondent to pay a sum of Rs. 800/- per month u/s 18(1)(2)(a) of the aforesaid Act. 3. The admitted case of both the parties is that, the Appellant married the Respondent on 5-8-1990 at Rourkela and the marriage was solemnized according to Hindu ceremonies prevalent in Santali caste. It is further,admitted that by efflux of time, dissension cropped up and the wife was deserted. There-after a petition was filed u/s 9 of the Hindu Marriage Act by the Respondent-wife for restitution of conjugal rights. The said petition was registered as C.P. Case No. 16 of 1996 and the learned Judge, Family Court, Rourkela, allowed the petition and the Appellant-husband was directed to restitute the conjugal rights with the Respondent-wife within two months from the date of passing of the order. It further appears that a civil appeal was preferred before this Court by the Appellant-husband and the same (Civil Appeal No. 9 of 1997) has been dismissed in the meanwhile. The wife thereafter filed a petition u/s 19 of the Hindu Adoption and Maintenance Act read with Section 7 of the Family Court's Act, praying for a maintenance at the rate of Rs. 2900/- per month. 4. The Appellant-husband appeared in the court below and filed a written statement, inter alia, admitting the fact of marriage. However, a plea was taken that, inspire of best efforts the wife has refused to stay with him and thus, he is not able to pay maintenance. It is also submitted by the Appellant-husband that the parties being "Santala" belonging to the Scheduled Tribe, the provisions of the Hindu Adoption and Maintenance Act is not applicable to them. 5. The learned Judge, Family Court, after discussing the evidence adduced by both the parties as well as other relevant documents allowed the application filed by the Respondent-wife and directed the Appellant-husband to pay Rs. 800/- per month towards maintenance. 6. 5. The learned Judge, Family Court, after discussing the evidence adduced by both the parties as well as other relevant documents allowed the application filed by the Respondent-wife and directed the Appellant-husband to pay Rs. 800/- per month towards maintenance. 6. In this civil appeal the only point raised by the Appellant is that, the parties are 'Santalas' and belong to Schedule Tribe, and in that view of the matter, the provisions of Hindu Adoption and Maintenance Act is not applicable. Sub-section (2) of Section 2 of the Hindu Adoption and Maintenance Act reads as follows: 2. Notwithstanding anything contained in Sub-section (1) nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. Admittedly the Tribe 'Santala' is reflected in the Schedule prepared under Article 366 of the Constitution. Thus, strictly speaking the Hindu Adoption and Maintenance Act may not be applicable to the parties of this case. However, we are not inclined to decide the said issue in the absence of evidence, either oral or documentary. 7. Be that as it may, both the Appellant and the Respondent admit the marriage. A husband has a pious duty to look after and maintain his wife. He has also a moral as well as legal obligation to look after his wife. It is bounden duty of the husband to see that the wife lives with dignity. When an application for grant of maintenance is filed by the wife, the husband should not make adroit attempts to defeat the application by adopting technical pleas. 8. Admittedly the husband is an employee of the State Bwk of India and draws a salary to the tune of Rs. 4,600/- as has been found by the court below. Thus, the husband has sufficient means to maintain his wife and technicalities should not stand on the way of granting maintenance to a destitute-wife. 9. Law is well settled to the effect that the nomenclature of a petition cannot stand in the way of a court which has authority and jurisdiction to grant relief. Thus, the husband has sufficient means to maintain his wife and technicalities should not stand on the way of granting maintenance to a destitute-wife. 9. Law is well settled to the effect that the nomenclature of a petition cannot stand in the way of a court which has authority and jurisdiction to grant relief. The label placed on a cause is not conclusive and does not ordinarily affect the jurisdiction of the court to allow the label to be corrected and grant such relief as is permissible under the law to a person who has approached the Court. Section 125 of the Cr. P.C. vests the power upon the court to direct maintenance if it is otherwise satisfied that the husband is liable and has sufficient means to maintain the wife who has been deserted. The rights u/s 125, Cr. P.C. are statutory rights and cannot be curtailed by personal law. The right conferred upon the wife by the provisions of this sections is independent of the personal law, a has been held by the Apex Court in Mohd. Ahmed Khan Vs. Shah Bano Begum and Others, . 10. In view of the facts and circumstances discussed above, ends of justice and equity warrants that the petition filed under the Hindu Adoption and Maintenance Act be treated to be one u/s 125, Cr. P.C. specially in view of the fact that the Judge, Family Court, Rourkela is also vested with the power to decide the petition filed u/s 125, Cr. P.C.. Therefore, we feel that it will be just and proper land equitable to convict this application to be one u/s 125, Cr. P.C.. A perusal of the impugned judgment reveals that all the ingredients necessary for adjudication of a lies filed u/s 125, Cr. P.C. are available on record. The Court below has arrived at a finding that there was valid marriage. It has also been held that the wife has been deserted and that the husband, who is an employee of the State Bank of India,has sufficient means to maintain the wife. In that view of the matter, we convert the application filed under Hindu Adoption and Maintenance Act to be an u/s 125, Cr. P.C. and direct that the Appellant-husband shall pay maintenance at the rate of Rs. In that view of the matter, we convert the application filed under Hindu Adoption and Maintenance Act to be an u/s 125, Cr. P.C. and direct that the Appellant-husband shall pay maintenance at the rate of Rs. 500/- (rupees five hundred only) per month with effect from the date of filing the application in the court be law i.e. 12-11-1996. With the aforesaid modification the civil appeal is disposed of Parties to. bear their own cost. Civil appeal disposed of.