Gurparshad Singh vs Chhinder Kaur and Others

Surya Kant, J.—This revision petition is directed against order dated 29.4.2004 passed by the Additional Civil Judge (Sr.Div.), Jagraon whereby two miscellaneous applications moved by respondent No. 1 and her two minor sons, have been allowed. The first application pertained to the grant of interim maintenance pending their suit u/s 19 of the Hindu Adoptions & Maintenance Act, 1956, whereas vide second application, the petitioner, who is father-in-law of respondent No. 1 and grandfather of respondents No. 2 and 3 was sought to be restrained from alienating his ancestral property.

Undisputed facts are that respondent No. 1 was married to the petitioner''s son, namely, Gurmeet Singh, in the year 1988. Two male children, namely, respondents No. 2 and 3 were born out of their wedlock. Gurmit Singh unfortunately died in the year 2002. Though it is alleged by the petitioner that the first respondent had left her matrimonial home during the life-time of Gurmit Singh and had started living with her parents along with the two minor children, the respondents have seriously refuted this allegation.

Alleging that after the death of her husband, she had no means to maintain herself and the minor children, respondent No. 1 has filed a suit u/s 19 of the Hindu Adoptions and Maintenance Act, 1956 (for short '' the Act'') for the grant of maintenance. It may be noticed here that the suit has been filed by the first respondent in forma pauperis and after inquiry into her assets, the said application was allowed by the trial Court. It is during the pendency of the aforesaid suit that the respondents moved the two applications, noticed above. While accepting the application for ad-interim maintenance, the trial Court has directed the petitioner to pay a sum of Rs. 1500/- to respondent No. 1 and Rs. 1000/- each to respondents No. 2 and 3 per month as interim maintenance. The trial Court took notice of the fact that the petitioner has started mortgaging the property in order to defeat the claim in suit, therefore, vide the impugned order it has also restrained the petitioner from alienating the subject property.

Aggrieved, the petitioner has filed this revision petition in which notice of motion was issued and in response thereto respondent No. 1 has put in appearance.

Two-fold contentions have been raised by learned Counsel for the petitioner. Relying upon a Division Bench judgment of the Allahabad High Court in the case of Raj Kishore Mishra Vs. Smt. Menna Mishra, , it is argued that unless respondent No. 1 pleads and prove that she is unable to maintain herself from the estate of her husband or her father or mother, her suit for claiming maintenance from the father-in-law is not maintainable. The second contention is that in no circumstances, interim maintenance could be granted by the trial Court as there is no such provision in the Act. In this regard, reliance has been placed upon a judgment of this Court in the case of Makhan Singh v. Jagdish Kaur and Anr. Marriage Law Journal (XIV) 491. An ancillary submission that the minor sons of the first respondent have no right to claim maintenance u/s 19 of the Act, has also been made.

Learned Counsel for the respondents, on the other hand, relies upon a judgment of this Court in the case of Balbir Kaur and Others Vs. Harinder Kaur and Others, to contend that the widowed daughter-in-law of a pre-deceased son has a right to seek maintenance against her father-in-law.

In order to appreciate the controversy, it will be profitable to refer Section 19 of the Act which reads as follows:

Maintenance of widowed daughter-in-law.-(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her fatherin- law:

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under Sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re-marriage of the daughter-in-law.

As would the plain language spell out, a widowed daughter-inlaw is entitled to be maintained by her father-in-law subject to, however, the following conditions-precedent:

(i) she is unable to maintain herself out of her own earnings or other property, or

(ii) from the estate of her husband, or

(iii) from the estate of her father or mother, or

(iv) from the estate of her son or daughter, if any, or his or her estate.

The fact that the respondent No. 1 has been permitted to sue in forma pauperis, prima facie, shows that she is unable to maintain herself out of her own earnings and she has no property to earn livelihood. It is not the case of either of the parties that the deceased husband of respondent No. 1 left behind any other estate which might be sufficient to maintain her except his share in the Joint Hindu Family property. So far as the estate of father and mother of respondent No. 1 is concerned, the petitioner''s plea is totally vague and evasive. However, learned Counsel for the respondents has taken a categoric stand which learned Counsel for the petitioner is unable to controvert that father and mother of respondent No. 1 are no longer alive. As noticed earlier, the sons of respondent No. 1 are minors and they themselves are dependent upon their mother. Prima-facie, it, thus, appears that respondent No. 1 has no source of income and cannot claim maintenance from any of the alternative modes provided in Section 19(1) of the Act. Therefore, at this stage, her suit to claim maintenance from her father-in-law, appears to be well merited and maintainable.

In any case, it is for the petitioner to allege and prove that respondent No. 1 has sufficient means to maintain herself. It is not expedient to form any final view in this regard at this stage. Coming to the second contention, it appears to me that the power to grant interim maintenance unless expressly barred, is inherent in the Court. It is a trite to say that a Court would be helpless silent spectator to the very defeat of cause of justice when a ''dependent'' even before the adjudication of his/her claim, is struggling for survival.

As far as the third contention is concerned, in view of Section 20 read with Section 21 of the Act, prima facie, it is difficult to hold that their claim is not maintainable. However, it being not desirable to express any view in regard, liberty is given to the petitioner to raise before the trial Court which shall consider the same in accordance with law. Consequently, I do not find any merit in this revision petition which is dismissed.

However, any observations made herein shall have no bearing on the merits of the case and the trial Court shall decide the suit without being influenced therefrom.