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2011 DIGILAW 4500 (MAD)

S. Eswari v. S. Kannammal

2011-11-12

G.RAJASURIA

body2011
Judgment :- 1. This Civil Revision Petition is focussed by the petitioner to direct the Family Court, Madurai, to number the unnumbered M.C.(S.R).No.3603 of 2011 dated 26.08.2011 and to decide the same on merits and in accordance with law within a time frame to be fixed by this Court. 2. The long and short of the relevant facts absolutely necessary and germane for the disposal of this Civil Revision Petition at the initial stage itself, would run thus: The grievance of the petitioner as aired by the learned Counsel for the petitioner is that the petitioner filed the petition invoking Section 22(1)(2) of Hindu Adoptions and Maintenance Act, 1956, as against her husbands brothers and sisters who inherited the properties of her deceased father-in-law and also who are in possession of her husbands share in the properties and however, they are not paying the maintenance to her. 3. The Family Court to which the petition was presented, returned it with the following direction: "Returned: This case should be filed in original suit not as Maintenance Case. Returned time 30 days." 4. The learned Counsel for the petitioner would submit that it is not necessary that a suit has to be filed and that even a petition would be sufficient for invoking the special provision as contemplated under Section 22(1)(2) of Hindu Adoptions and Maintenance Act, 1956. 5. At this juncture, I would like to highlight and spotlight that filing a civil suit claiming maintenance, is a general remedy contemplated under the law; whereas the specific provision of law under Section 22(1)(2) of Hindu Adoptions and Maintenance Act, 1956, enables the deserving party to claim maintenance, if the case of such person is within the parameters of it. 6. Here, the petitioner comes forward with a specific plea that her case is covered by the said special provision referred to supra and it is for her to prove it during enquiry. 7. I am of the considered view that to invoke the special facility envisaged under the special provision of law, a mere original petition would be sufficient and not necessarily a suit should be filed to get enforced such special statutory right conferred by the Special Enactment. 7. I am of the considered view that to invoke the special facility envisaged under the special provision of law, a mere original petition would be sufficient and not necessarily a suit should be filed to get enforced such special statutory right conferred by the Special Enactment. Here, the petitioner who is a widow, seeks maintenance which should always be considered sympathetically cutting across technicalities and punctilious of Court procedures and much more in the case of the Family Court handling such cases. 8. I would like to refer to Article 11 (l)(ii) in Schedule II appended to the Tamil Nadu Court-fees and Suits Valuation Act, 1955, thusly: "Article (11).(l) Original petitions not otherwise provided for when filed in -.... (ii) the City Civil Court, Chennai, a Sub-Court or a District Court; -Twenty-five rupees." (emphasis added.) 9. Not to put too fine a point on it, I am of the view that the petitioner shall represent the petition as Maintenance Original Petition before the Family Court, Madurai, paying a Court fee of Rs.25/- (Rupees Twenty Five only) as contemplated under Article 11 (l)(ii) of Schedule II appended to the Tamil Nadu Court-fees and Suits Valuation Act, 1955. If the other side, after entering appearance, objects to the procedure in filing the Original Petition and not in the form of Original Suit, then I make it clear that it is open for the Family Court, to hear both sides and pass orders on that issue, over which the party aggrieved could approach this Court. As such, I am of the view that the Family Court as of now can proceed further as mandated by me supra. 10. With the above observations, the Civil Revision Petition is disposed of. No costs.