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2006 DIGILAW 2110 (PNJ)

Rajwinder Singh v. Amarjit Kaur

2006-05-15

S.S.SARON

body2006
Judgment S. S. Saron, J. 1. This petition has been filed under Article 227 of the Constitution of India against the order dated 14.5.2004 passed by the learned Civil Judge (Junior Division), Sunam whereby the petitioner-husband has been directed to pay maintenance to the respondent-wife @ Rs.1,000/- per month from the date of application. 2. The respondent-wife filed a petition under Sec.18 of the hindu Adoption and Maintenance Act, 1956 (`act for short) against the petitioner-husband seeking permission of the Court to sue as an indigent person so as to institute a suit for maintenance. In the said suit, an application has been filed for interim maintenance. According to the averments made therein the marriage of the applicant was performed with the petitioner Rajwinder Singh in July 1993 by way of Anand Karaj ceremony. From the wedlock between the parties they had no issue. The respondentwife alleged that she was ill-treated and there were demands for dowry. During the pendency of the petition, an application has been filed for the grant of ad interim maintenance which, as already noticed, has been allowed and is assailed by the petitioner-husband. 3. Learned counsel for the petitioner submits that in a petition under Sec.18 of the interim maintenance cannot be granted in view of the judgment of this Court in Makhan Singh V/s. Jagdish Kaur and others, 1992 Civil Court Cases 29. I have given my thoughtful consideration to the contention of the learned counsel for the petitioner. 4. The question whether in a petition filed in forma pauperis seeking maintenance under Sec.18 of the Act, interim maintenance can be granted is, in fact, not res integra in view of the judgment of this Court in sukhminder Singh V/s. Baljeet Kaur and others. In the said case the entire law was considered including the judgment in Makhan Singh v. Jagdish Kaur (supra) relied upon by the learned counsel for the petitioner. A learned Single Judge of this Court in the said case held that interim maintenance cannot be granted. Reliance in the said case was placed on the judgment of this Court in Saudagar Singh V/s. Smt. Harbhajan Kaur, (1977) 79 plr 506 and Gorivelli Appanna V/s. Gorivelli Seethamma, AIR 1972 A. P.62. However, a Division Bench of this Court in Puran Singh and others V/s. Mst. Reliance in the said case was placed on the judgment of this Court in Saudagar Singh V/s. Smt. Harbhajan Kaur, (1977) 79 plr 506 and Gorivelli Appanna V/s. Gorivelli Seethamma, AIR 1972 A. P.62. However, a Division Bench of this Court in Puran Singh and others V/s. Mst. Har Kaur and another, 1970 Current Law Journal 648 took a contrary view and held that, where marital status is admitted, it is the duty of the husband to maintain the wife, no matter even if she is not prepared to live with him or perform the conjugal duties. In the said case, it was further held that an interim order granting maintenance, in a suit for maintenance, can be passed and it will not suffer from want of jurisdiction, for in that event, it will not be deciding the substantive question. The decision of the Division Bench was not brought to the notice of the learned Single judgment in Makhan Singhs case (supra ). Besides, this Court in Sukhminder Singh V/s. Baljeet Kaur and others (supra), after considering the entire law, as also the judgment of this court in Makhan Singhs case (supra), held that interim maintenance can be granted during pendency of petition under Sec.18 of the In regard to Makhan Singhs case (supra) and other judgments taking the same view it was observed by his Lordship that he was unable to agree with the views expressed in the said cases. A reference was made to various judgments in which interim maintenance has been granted. In respect of Makhan Singhs case (supra), it was observed that it referred to a decision of the Andhra pradesh High Court in Gorevelli Appana V/s. Gorivelli Seethamma (supra), wherein it was held that Sec.18 of the Act does not authorize the award of interim maintenance pending decision on the claim to maintenance. 5. However, it was also observed that the said decision of the Andhra Pradesh high Court was dissented by the same High Court in Adigarla Sinhachalam v. Adigarla Pappamma, AIR 1973 A. P.31 holding that even during the pendency of the proceedings instituted by the wife interim maintenance can be claimed. A reference was also made to the case of Puran Singh V/s. Har kaur (supra) and it was observed that the decision of the Division Bench of this Court was binding on his Lordship. A reference was also made to the case of Puran Singh V/s. Har kaur (supra) and it was observed that the decision of the Division Bench of this Court was binding on his Lordship. Therefore, the contention of the learned counsel for the petitioner that interim maintenance cannot be granted during the pendency of petition under Sec.18 of the Act, is not tenable, in view of the decision of Division Bench of this Court in Puran Singhs case (supra), which has been followed in Sukhminder Singhs case (supra ). 6. Learned counsel for the petitioner, however, then contended that the respondent-wife is also getting Rs.400/- per month as interim maintenance in the petition filed under Sec.125 of the Code of Criminal procedure (`cr. P. C. - for short ). The said amount of course would be subject to the adjustments that are to be made in the amount awarded in the present case. 7. In view of the above, there is no merit in the present petition and the same is accordingly dismissed. The petitioner shall, however, be entitled to adjust the amount which he is paying in proceedings under Sec.125 cr. P. C. as maintenance towards interim maintenance payable in pursuance of the order under revision.