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2001 DIGILAW 841 (PNJ)

Bachan Singh v. Dalip Kaur alia Deepo

2001-08-10

M.M.KUMAR

body2001
ORDER M.M. Kumar, J. - This is husbands Regular Second Appeal against the judgment dated 2.6.1979 delivered by Addl. District Judge, Bhatinda. 2. The brief facts of the case are that respondent-wife smt. Dalip Kaur married the appellant Bachan Singh. After keeping her for about 20/25 years. She was turned out by the husband by giving her beating. All her requests through the meetings of Panchayat etc. failed. As the husband had deserted her she filed a suit on 3.9.1977 for fixing her maintenance @ Rs. 300/- p.m. It is pertinent to mention that the suit filed by her was in the forma pauperis. The trial Court rejected the argument of the appellant-husband that the respondent-wife was unchaste as she had been living in adultery and had infact married with the younger-brother of the appellant. After detailed consideration of the whole evidence produced by both sides, the issue with regard to unchastity of respondent-wife was decided against the appellant- husband. The trial Court decreed the suit of the respondent-wife fixing her maintenance @ Rs. 100/- p.m. and creating the same as a first charge on the property owned by the appellant-husband which was leased out during the pendency of the suit. It was further made clear that since the respondent- wife was granted maintenance under Section 125 of the Criminal Procedure Code also, she was not entitled to realise the maintenance amount in pursuance of both the orders civil as well as criminal. However, choice was given to her to choose which order she wish to execute. Against the judgment and decree dated 15.12.1978 passed by the Sub Judge Ist Class, Mansa, the appellant- husband filed an appeal. The challenge to the judgment was, however, confined to in so far as the trial Court had ordered the maintenance allowance as the first change on the property of the appellant-husband. The further contention of the appellant-husband before the lower appellate Court was that in any case the first charge of the maintenance allowance could be created only against part of the land and not in respect of the whole land comprising 6 acres belonging to the appellant-husband because Section 27 of the Hindu Adoptions and Maintenance Act, 1956 (for short the Act) does not permit creation of charge at all on the land/property of the appellant-husband in lieu of maintenance. The first appellate Court partially accepted the contention of the appellant-husband but kept the landed property of the appellant-husband under first charge to the extent of half of the land. It is against this judgment and decree as modified by the learned appellate Court that the appellant-husband has filed the present appeal. 3. I have heard Sri R.S. Bains, Advocate, learned counsel for the appellant- husband and Shri Surinder Singh, Advocate for the respondent-husband and have perused the record with their assistance. 4. The only substantive question of law which arises in this appeal for the consideration of this Court is whether the decree for maintenance passed in favour of deserted wife could be a charge on the landed property of the husband ? 5. Shri R.S. Bains, learned counsel for the appellant has contended that although under Section 18 of the Act maintenance could be granted to the wife but Section 27 of the Act does not permit creation of the charge on his estate. He submits that the lower appellate Court committed a grave error in law by creating a charge on the landed property of the appellant-husband. On the other hand, Shri Surinder Singh, Advocate, learned Counsel for the respondent-wife, submits that once the appellant-husband has acted with a mala fide intention and an attempt was made to alienate the property by leasing it for a period of 99 years, both the Courts below were justified in creating first charge on the property of the appellant-husband. He further submits that there is no error of law or error of jurisdiction committed by the lower appellate Court in creating the first charge on the property of the appellant-husband. According to him, the order of the lower appellate Court is absolutely fair and just as the charge has been created with regard to half of the property by modifying the decree passed by the trial Court creating a charge in respect of the whole. 6. I have thoughtfully considered the respective submissions of the learned counsel for the parties and I am of the considered opinion that this appeal is liable to be dismissed. The contention of the learned counsel for the appellant that under Section 27 of the Act charge cannot be created on the property merits rejection. Section 27 of the Act reads as under : "Maintenance when to be a charge. The contention of the learned counsel for the appellant that under Section 27 of the Act charge cannot be created on the property merits rejection. Section 27 of the Act reads as under : "Maintenance when to be a charge. - A dependents claim for maintenance under this Act shall not be a charge on the estate of the deceased or any portion thereof, unless one has been created by the will of the deceased, by a decree of court, by agreement between the dependent and the owner of the estate or portion, or otherwise. A perusal of Section 27 of the Act shows that charge can be created by a decree of the court if so directed. It is true that the order of maintenance ipso facto may not create a charge on the property of the husband without specific decree to that effect. But there is no bar on the Court to pass a decree creating the maintenance as a first charge. In the present case, the husband has made an attempt to alienate the landed property by executing the lease for a period of 99 years. In order to save the hapless wife and decree passed in her favour from being defeated, the courts below have made the decree as the first charge on the property of the appellant- husband. 7. More than 29 years ago, a Division Bench of this Court in the case of Smt. Bhago v. Smt. Bachni, AIR 1972 P&H 169 has held that a claim for maintenance can be made a charge on the property of even deceased husband by a decree of the Court. Similar view has been expressed by the Allahabad High Court in the case of Kehar Singh and other v. Smt. Jawala and others, 1981 All.L.J. 413. Therefore, there is no substance in the submission of the learned counsel for the appellant-husband. In view of the reasons stated above, this appeal fails. The judgment and decree passed by the lower appellate Court is affirmed. However, there will be no order as to costs. Appeal dismissed.