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2009 DIGILAW 32 (JK)

Ajmer Singh Sindhu v. Madhur Sindhu

2009-02-04

NIRMAL SINGH

body2009
1. An important question of law involved in the present petition is as to whether a suit filed for maintenance under Section 18/20 of Hindu Adoption and Maintenace Act, 1960, without affixing the court fee can be entertained as a petition. 2. The facts in brief are that the respondent filed a civil suit claiming maintenance from the petitioner @ Rs.6000/- per month. The suit so filed was accompanied with the court fee of Rs.12.50. An objection was taken by the petitioner (defendant) before the court below that the suit filed by the respondent (plaintiff) has not been valued in terms of Section 7(ii) of the Court Fees Act, 1977. The said Section, for facility of reference is being reproduced below:- "7(ii)for maintenance and annuities:- In suits for maintenance and annuities or other sums payable periodically according to the value of the subject matter of the suit and such value shall be deemed to be ten times the amount claimed to be payable for one year." 3. On the basis of the aforequoted provision, it was pleaded by the petitioner that as the amount of maintenance claimed by the respondent is Rs.6000/- per month and the same comes to Rs.72000/-for one year, therefore, the suit has to be valued ten times the said amount so claimed i.e. Rs.7,20,000/-. After taking into consideration the pleas put forth by the parties, the court below observed as under- "So far as the provisions of the Act are concerned, these expressly exclude the application of General Law and Adoption and maintenance has to be governed by the Adoption and Maintenance Act 1960 itself. The Act is a beneficial legislation and it serves social purpose as under the Act U/s 18/20, maintenance can be claimed from the parents or husband, without statutory limit of Rs.2000 provided under Section 488 Cr.P.C. Thus where the respondents income is in lacs, the petitioner cannot be allowed to starve by providing him maintenance restricting the remedy U/s 488 Cr.P.C. only. It is not out of place to mention here that deserted wife and children belonging to affluent and rich parents are deserted by the wealthy husband or father who preferred to live luxurious life by spending upon themselves and yet depriving their children and wives from living their comfortable life. It is for this reason that Section 18/20 of Hindu Adoption and Maintenance Act shall come to their rescue. It is for this reason that Section 18/20 of Hindu Adoption and Maintenance Act shall come to their rescue. The applicability of Code of Civil Procedure will be for enabling purpose and the matters shall be governed by the Provisions of Hindu Adoption and Maintenance Act itself. The claim under the Act is, therefore, proceeding and not a suit as it will be absurd to say that places where the Hindu Adoption and maintenance Act is applicable, the genuine claimants shall be deprived of the remedy by ordering them to bring a suit, pay court fee under General Law and claim maintenance under the special Law of Hindu Adoption and Maintenance Act. The aspect and object of establishing Family courts is to do away with the technalities and traditional necessities of litigation. The claim U/s 18/20 shall, therefore, be governed by the provisions of Hindu Adoption and maintenance Act, which shall be treated as proceeding under the Act at par with proceedings under Family Court, where the Family Court Act is applicable." 4. The court below ultimately held that the claim for maintenance filed by the respondent is to be treated as petition under the Hindu Adoption and Maintenance Act, 1960, (here-in-after referred to as the Act of 1960) and the Court Fees Act, is not applicable. It is against the said order passed by the court below, the present revision petition has been preferred. 5. Learned counsel for the petitioner, as noticed above, placing reliance on Section 7(ii) of the J&K Court Fees Act, 1977, (here-in-after referred to as the Act of 1977), has submitted that the suit filed by the respondent was liable to be dismissed as the same was not valued in terms of the above provision. It is stated that the suit filed by the respondent cannot be treated to be petition under the Act of 1960, as held by the court below, in absence of any application filed by the respondent in this regard and without affording an opportunity of being heard to the petitioner. It is stated that the suit filed by the respondent cannot be treated to be petition under the Act of 1960, as held by the court below, in absence of any application filed by the respondent in this regard and without affording an opportunity of being heard to the petitioner. It is stated that in terms of the Act of 1960, there is no provision that a petition will lie for claim of maintenance by wife and as no forum under the said Act is provided for claiming maintenance, the claim so filed by the respondent is to be treated as a civil suit in terms of Section 9 of the Code of Civil Procedure for claim of maintenance. It is further stated that even if the claim filed by the respondent has been ordered to be treated as a petition, the trial court had no jurisdiction to try the same. 6. Mr. BS Manhas, learned Senior Advocate, appearing for respondent submitted that proceedings under Sections 18 and 20 of the Act of I960, are summary in nature, and therefore, these cannot be termed as a `suit as described under Section 9 of the CPC, but the same are to be taken as a petition as the aforesaid act is a beneficial Act. It is stated that this Act was enacted for the benefit of wife, minor children and aged parents who are unable to maintain themselves and thus, is in the nature of social enactment. He also pointed out that the proceedings under the Hindu Marriage Act, Hindu Succession Act, are entertained and adjudicated by the civil court considering the same as petition and not a suit. It is thus stated that the provisions of Section 7 of the Jammu and Kashmir Court Fees Act, 1977, are not applicable to the present case and the respondent, therefore, is not to pay the court fee on the amount claimed. It is stated that the court below has not committed any legal error by treating the suit filed by the respondent as a petition for maintenance under the Act of 1960. It is stated that the court below has not committed any legal error by treating the suit filed by the respondent as a petition for maintenance under the Act of 1960. He further submitted that the respondent has claimed maintenance @Rs.6000/- per month and, in case, the proceeding initiated by the respondent before the court below is treated as a `suit, then as per the provision of Section 7 of the Court Fees Act, noticed above, which is being relied upon by the counsel for the petitioner, the respondent has to pay the court fees of Rs. 7,20,000/-, and in such circumstances, the purpose of Act of 1960, which is a beneficial act would get defeated. It is thus submitted that the courts are to pass the orders to promote the ends of justice, which has been done in the present case also by the court below. 7. Before considering the rival contentions, it will be appropriate to notice Sections 18 and 20 of the Act of 1960. These read as under:- "18. Maintenance of wife: (1) Subject to the provisions of this sect/on, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. These read as under:- "18. Maintenance of wife: (1) Subject to the provisions of this sect/on, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. (2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claims to maintenance: (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her; (b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband; (c) if he is suffering from a virulent form of leprosy; (d) if ho has any other wife living; (e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion; (g) if there is any other cause justifying her living separately; (3) A Hindu wife shall not be entitled to separate residence any maintenance from her husband if she is unchaste or cease to be a Hindu by conversion to another religion." "20: Maintenance of children and aged parents: (1) Subject to the provisions of this section, a Hindu is bound, during his or her life-time, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property." 8. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property." 8. A perusal of Section 18 afore quoted shows that a Hindu wife, whether married before or after the commencement of the Act of 1960, is entitled to maintenance from her husband during her lifetime and is also entitled to live separately from her husband without forfeiting her claim to maintenance subject to the provisions of clauses (a) to (g) of Section 18 noticed above. The right to maintenance of the wife is only defeated if she is unchaste or ceases to be a Hindu by conversion to another religion. 9. Similarly, under Section 20 noticed above, a Hindu, during his or her life time is bound to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents but a legitimate or illegitimate child will be entitled to claim maintenance from his or her father or mother till he or she attains the majority. In terms of provisions of the said Section, a Hindu is also bound to maintain his or her aged or infirm parents or a daughter who is unmarried if they are unable to maintain themselves and have no source of earning of their own. 10. The Act of 1960 does not prescribe any forum for enforcement of right to get maintenance by a wife. It has also not been provided that the wife is to file only a suit for the purposes of maintenance. It only prescribes a substantive right in favour of wife or children or the aged parents as the case may be, for enforcement of right to maintenance. The said Act only uses the expression `claim to maintenance which has to be understood in the light of basic object which is sought to be achieved by the enactment of the aforesaid Act. 11. It be further noticed that under Section 488 of Criminal Procedure Code, wife and other destitute persons are entitled to claim maintenance from the person who is bound to maintain them upto a permissible limit of Rs. 11. It be further noticed that under Section 488 of Criminal Procedure Code, wife and other destitute persons are entitled to claim maintenance from the person who is bound to maintain them upto a permissible limit of Rs. 2000/- per month and in terms of the provisions of Hindu Marriage Act, 1980, if it appears to the court concerned that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of either of the party, pass an order for expenses of the proceeding, and monthly during the proceeding such amount taking into consideration the income of husband or wife, which may seem to the court to be reasonable. Therefore, in order to provide better maintenance to the destitute women, parents and children, the Act of 1960 has been enacted in the shape of a beneficial enactment. As indicated above, the said Act does not provide any forum, therefore, the claim for maintenance is to be treated as a proceeding before the civil court as the said claim is of a civil nature. 12. In Shanti Saroop v. Mst Usha Devi, 1979 KLJ 149, this court while awarding interim maintenance under Section 18 of the Act of 1960, in para 7 of the judgment, held as under:- "A perusal of Section 151 C.P.C. shows that orders under Section 151 C.P.C. are made in aid of the suit. This provision of the Code of Civil Procedure recognizes the inherent powers of a court of law to make such orders as may be necessary for the ends of justice. The expression, "as may be necessary for the ends of justice", occurring in the section unambiguously shows that the court can resort to the provisions of this section if an order is required to be made in the interest of justice to promote justice and in the aid of this suit or proceeding. The mere fact that the Act does not contain any provision for the grant of any interim relief during the pendency of proceedings under Section 18/20 of the Act, cannot take away the inherent powers of the court under Section 151 C.P.C. It is within the inherent jurisdiction of a court to make an order which tends to promote the ends of justice. It is in the absence of a specific provision in a given statute for interim relief, that resort under Section 151 C.P. C. is generally made by the courts to grant interim relief." 13. In Smt Mamta and others v. Hari Kishan, AIR 2004 Raj 47, a Division Bench of Rajasthan High Court, in paragraphs 13, 14 and 15 of the judgment has held as under:- "13. It makes an attempt to simplify the rules of evidence and procedure as to enable a Family Court to deal effectively. One of the objectives is to bring succur to women and children, who have been abandoned by her husband and others. Rule 7 speaks of initiation of proceedings before the Family Court by way of plaint or petition or application otherwise, as the Court thinks fit. The Framers of the rules have casually incorporated all sorts of alternatives i.e. plaint or petition or application. In case, the action instituted before the Family Court is taken as a plaint and tried as a suit, we are of the view that the entire purpose of setting up Family Courts will be frustrated. With a view that to deal with the action in a matrimonial dispute more quickly different from the procedure adopted in ordinary civil proceedings, the action will have to be taken as instituted on application. Any other interpretation asking to pay ad volorem court fees will operate harshly and tends to price justice out of reach of many distress litigants and destroying the very object of setting up of the Family Courts. Thus, when a woman and the children ask for the maintenance, the proceedings are to be initiated by way of an application. Section 7 of the Family Courts Act directs that the Family Court shall deal for the purpose of exercising the jurisdiction under the Act to be the district Court or other subordinate. Civil court for the area to which the jurisdiction of the family Court exists. Thus, Section 7(1)(f) of the Act takes within its purview a suit or proceeding between the parties to a marriage with respect the property of the parties or any of them. Since the proceeding before the Family Court commences by way of a petition or an application, it is obvious , that such an application would be governed by Schedule II of the Rajasthan Court Fees and Suit Valuation Act, 1961. Since the proceeding before the Family Court commences by way of a petition or an application, it is obvious , that such an application would be governed by Schedule II of the Rajasthan Court Fees and Suit Valuation Act, 1961. Sub clause (k) of Clause 11 of Schedule II of the Act of 1961 reads as follows: 14. Thus, the Court fee shall be payable under the above extracted residuary clause. As we have held that a proceeding before a Family Court is not a suit, Section 22 of the Rajasthan Court Fees and Suit Valuation Act, 1961 is not attracted. Section 22 is extracted as follows: "22. Suit for maintenance and annuities-ln the suits hereinafter mentioned, fee shall be computed as follows:- 15. A bare look at Section 22 of the aforesaid Act shows that the said provision is applicable to suits and not applications or proceedings. The action instituted by the appellant wife and the children under Sections 18 and 20 of the Hindu Adoptions and Maintenance Act, 1956 is a proceeding in view of Section 7(f) and not a suit. Thus, the provision of Section 22 of the Rajasthan Court Fees and Suit Valuation Act has no application. Our view is fortified by a Division Bench judgment of Kerala High Court in Saleesh Babu v. Deepa reported in (1996) 2 Hindu LR 441. It is well established law that in case of fiscal Statute, the provision must be strictly interpreted giving every benefit of doubt to the subject and lightening, as far as possible, the burden of court fees on litigant. Where an adjudication falls within two provisions of Court fees Act one of which onerous for the litigant and other more liberal, the Court would apply that provision which is beneficial to the litigant. Reference be made to AIR 1957 SC 657, AIR 1964 SC 457 and 1976(3) SCC 800(AIR 1976 SC 1503). Accordingly, we hold that all the petitions in the Family Courts are in the nature of petitions or applications and the court fees is payable under the Clause 11 (k) of the Schedule II of the Rajasthan Court Fees and Suit Valuation Act." 14. Accordingly, we hold that all the petitions in the Family Courts are in the nature of petitions or applications and the court fees is payable under the Clause 11 (k) of the Schedule II of the Rajasthan Court Fees and Suit Valuation Act." 14. Applying the ratio of the above mentioned judgment, it can safely be said that the claim put forth by the respondent-wife against the petitioner-husband before the court below is a petition and not a suit under Section 18 of the Act of 1960, and therefore, the provisions of Section 7 of the Court Fees Act, Svt. 1977, would not be applicable. 15. Even otherwise, it will not be in the interest of justice to treat the proceedings initiated by the wife, children and aged parents under Section 18/20 of the Act of 1960, as a suit. This is because, when such a proceeding is treated as a suit, the court fees is to be affixed as per Section 7 of the Court Fees Act and, in case, the claim as put forth by the wife, children or aged parents is on the higher side and if after adjudication, the court concerned is of the view that lesser claim is to be awarded than the one so claimed, then the claimants i.e. wife, children or aged parents will suffer as there is no provision to refund the court fees once affixed. In such a circumstance, as indicated above, the very purpose of the Act which is to safeguard the interest of distress wife, children and aged parents, would get frustrated. 16. There is another aspect of the matter. The respondent is entitled to maintenance from the petitioner even though she is living separately as her case is not covered by the conditions as enumerated in clauses (a) to (g) of sub Sec.2 of Section 18 or Sub Section 3. Her claim of maintenance would be similar to the one as recognized by Section 488 of Criminal Procedure Code as well as Section 30 of the Jammu and Kashmir Hindu Marriage Act, 1980. Her claim of maintenance would be similar to the one as recognized by Section 488 of Criminal Procedure Code as well as Section 30 of the Jammu and Kashmir Hindu Marriage Act, 1980. She as such, is entitled to enforce her right to maintenance under the Act of 1960 also by way of filing a petition or an application before a civil court which mode she has adopted, and therefore, she cannot be directed to approach the civil court only by way of a `suit, as this would, as indicated above, defeat the very object and purpose of Act of 1960, which is a beneficial legislation to safeguard the interests of wife, children and aged or infirm parents. 17. For the reasons mentioned above, this revision is found to be without any merit and is dismissed. No order as to the cost. Parties to appear before the court below on 16th of Feb09.