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2002 DIGILAW 199 (KAR)

PRAKASH G. KHOT v. CHANDNIKHOT

2002-03-13

CHANDRASHEKARAIAH

body2002
CHANDRASHEKARAIAH, J. ( 1 ) THIS writ petition is by the father of the respondent challenging the order dated 29-11-2001 passed by the Principal Judge, Family Court, bangalore in O. S. No. 113 of 2001 on LA. No. V. ( 2 ) THE facts of the case are as follows. In a petition filed by the petitioner herein under Section 9 of the hindu Marriage Act as against the mother of the respondent for dissolution of the marriage before the Family Court at Pune, the Family Court at Pune, after hearing both the parties, by its order dated 15-9-1994 dissolved the marriage between the petitioner and the mother of the respondent herein under Section 13-B of the Hindu Marriage Act. While dissolving the marriage, the Family Court at Pune has awarded a sum of Rs. 800/- per month as maintenance in favour of the respondent. Subsequent to the order passed by the Family Court, Pune, the respondent herein has filed original suit before the Principal Civil Judge, Family court, Bangalore, claiming maintenance of Rs. 5,000/- per month under the provision of the Hindu Adoptions and Maintenance Act, 1956. In that suit, the petitioner herein has taken the contention that the family Court at Bangalore has no jurisdiction to entertain the suit stating that the Family Court at Pune, which passed the order of dissolution of the marriage, alone has got the jurisdiction to award maintenance. The Principal Judge, Family Court has rejected interim appeal holding that it has got jurisdiction to entertain the suit. It is that order that has been challenged in this writ petition by the petitioner. ( 3 ) THE Family Court at Bangalore, has held that since the respondent herein and her mother are residing at Bangalore, the suit filed by the respondent for maintenance is maintainable. As could be seen from the impugned order, though the petitioner has not specifically raised the question of jurisdiction of Bangalore Court is now urging the said contention before this Court. Learned Counsel appearing for the petitioner request that the said point may be considered as it is purely a question of law. In view of the fact that this is purely a question of law, I propose to consider this point also. Learned Counsel appearing for the petitioner request that the said point may be considered as it is purely a question of law. In view of the fact that this is purely a question of law, I propose to consider this point also. ( 4 ) SO far as the filing of suit at Bangalore is concerned, since the respondent and her mother are residing at Bangalore, they can maintain a suit before the Family Court at Bangalore as provided under Section 19 of the Code of Civil Procedure. Therefore, the only question that arise for my consideration is. "whether awarding of maintenance in a proceedings relating to the dissolution of the marriage under the provisions of the Hindu marriage Act in favour of a minor child would come in the way of the minor child filing a suit in her own right under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 for maintenance?" ( 5 ) IN the petitions filed under Section 9, 13, 13-A or 13-B of the Hindu marriage Act, 1956, no doubt, the Court is required to take care of the minor children while awarding maintenance as contemplated under Section 26 of the Hindu Marriage Act. But, awarding of maintenance in a proceedings initiated under the Hindu Marriage Act will not take away the right of minor child to claim maintenance in its own right under Section 20 of the Hindu Adoptions and Maintenance Act, 1956. Under Section 20 of the Hindu Adoptions and Maintenance Act, 1956, a legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. If that is so, a minor child in her own right can maintain a suit for maintenance. But the Court, while granting decree in a suit for maintenance under Section 20 of the Hindu Adoption and Maintenance act, is required to take into consideration the quantum of maintenance awarded by the Court in a proceeding relating to the dissolution of the marriage. Therefore, I hold that the suit for maintenance filed by the minor child in her own rights is maintainable in law. ( 6 ) SRI V. B. Ganachari, learned Counsel appearing for the petitioner relying upon the decision of this Court in the case of Dr. Therefore, I hold that the suit for maintenance filed by the minor child in her own rights is maintainable in law. ( 6 ) SRI V. B. Ganachari, learned Counsel appearing for the petitioner relying upon the decision of this Court in the case of Dr. D. Thimmappa v R. Nagaveni, submits that the original suit filed by the respondent for maintenance is not maintainable. This Court, in the above decision has held as under. "the Court is entitled to grant maintenance not only for the wife but also for children in view of Section 26 of the Hindu Marriage act. The object behind Section 26 of the Hindu Marriage Act is to take care of the minor children while granting decree under the hindu Marriage Act". If that is so, any order passed relating to the maintenance of minor children is not a bar for instituting a separate suit independently by a minor child for maintenance. Another decision relied upon by the learned Counsel is kartarchand Dalliram Jain v Smt. Taravati Kartarchand Jain, in support of his contention that there is bar on the Courts to award maintenance. This decision is not at all applicable to the facts of this case. The petitioner has relied upon another decision in Chand Dhawan v Jawaharlal. This decision is also of no assistance to the petitioner since the facts of the said case are altogether different from the facts involved in this case. Hence, there is no substance in the contentions of the learned Counsel appearing for the petitioner. Hence, I pass the following:order writ petition is rejected. --- *** --- .