Hon'ble Om Prakash-VII,J.
(Delivered by Hon'ble Om Prakash-VII, J.) This first appeal has been filed by the appellant Smt. Jagdamba Tiwari against the order dated 24.7.2014 passed by Principal Judge, Family Court, Varanasi in Suit No. Nil of 2014 (Jagdamba Tiwari Vs. Onkar Nath Tiwari) whereby the Suit has been dismissed as not maintainable.
As per the office report dated 27.8.2014, all the defects except filing of the typed copy of the impugned judgment have been removed. An objection application no.284268 of 2014 has been filed by the appellant against the report of the stamp reporter in respect of typed copy of the order and limitation. Since there is only a delay of one day in filing the appeal, the same is condoned and the Appeal is treated to be filed within time. Since certified copy of the impugned order is available on record, the appellant is exempted from filing the typed copy of the impugned order. Hence, the aforesaid objection application is allowed.
The brief facts of the case, as given in the copy of the Plaint filed by the appellant and indicated in the memo of appeal, are that appellant has filed a Suit in the Family Court at Varanasi against her father and husband (defendants) for the relief of maintenance for treatment as she is suffering from slip disc disease and the defendants are not providing any treatment to her. The Family Court, Varanasi, vide impugned order, has dismissed the Suit at initial stage observing that it is not clear under which provision and for which relief, the Suit has been filed. Cause of action mentioned in the Suit is also not clear and the petition is vague and frivolous. It has also been observed that plaintiff has not clearly mentioned the relief claimed against the defendants and the Suit is not on proper proforma.
It is the submission of the appellant in person, who claimed herself as an advocate, that her father and her husband are not providing treatment for her slip disc despite her request and are neglecting the same. It has also been submitted that due to slip disc disease, she is unable to perform her marital responsibilities / relationship and her husband blamed her that she is not a complete woman, therefore, she is residing at present at her parental house. Thus, prayer has been made to allow the appeal, set-aside the impugned order and direct the Principal Judge, Family Court, Varanasi to entertain the petition / suit filed by the appellant.
Since the impugned order has been passed at initial stage in absence of the defendants-respondents, we do not find any necessity to issue notice to the respondents. Thus the Appeal is being decided without issuing notices to the respondents.
We have considered the submission raised by the appellant in person and also perused the entire record including the typed copy of the Plaint filed by the appellant.
The said Suit had been filed by the plaintiff before the Family Court, Varanasi on the basis that she is the legally wedded wife of defendant no.2. If the facts mentioned in the Suit are taken into consideration in totality, then it is apparent that the appellant wants maintenance for her treatment of slip disc disease from the defendants, who are not providing the same.
Under the provisions of Section 18 of The Hindu Adoptions and Maintenance Act, 1956 (In Short 'the Act'), a Hindu wife, whether married before or after the commencement of this Act, is entitled to be maintained by her husband during her life time.
Section 3. (b) of the Act defines the word "Maintenance" as under :
"Maintenance" includes -
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.
If the provision mentioned in Section 3.(b) of the Act is taken into consideration, then it is clear that maintenance includes the medical attendance and treatment also. Thus, a wife can legally claim the maintenance for her medical treatment.
So far as the observation recorded by the Principal Judge, Family Court regarding the vagueness and frivolousness of the Suit is concerned, it is a family dispute and the Courts are expected not to adopt hyper technical views, but should be liberal enough to impart substantial justice. Normally, the Courts take a lenient and liberal view in the matters regarding family disputes. To be hyper technical and punishing a client for the fault has never been the job of the Courts. The Courts must act in a manner so that justice may be done to the litigant.
If the Plaint shall be read in toto then from the language of the averments made in the Plaint, a cause of action to file the Suit arises. Therefore, the Suit under the aforesaid Act may be entertained. Non-mentioning of any provision of the Act itself is not a sufficient ground to dismiss the Suit as not maintainable. The whole contents of the Plaint shall be taken into consideration. From the averments of the Plaint, it is also clear that appellant wants maintenance from the respondents for her treatment who is suffering from slip disc. Who will be responsible to pay the maintenance is not the subject matter of the case at this stage. It will be seen after the evidence of the parties. If Suit has not been filed on proper proforma then also the same cannot be rejected. The Principal Judge, Family Court, while passing the impugned order, has adopted hyper technical approach. Thus, we find force in the Appeal and the impugned order passed by the Principal Judge, Family Court, Varanasi is not sustainable and is liable to be set-aside.
In view of the above, the Appeal is allowed. Impugned order dated 24.7.2014 passed by Principal Judge, Family Court, Varanasi is hereby set-aside and the aforesaid Suit, as such, is found maintainable for the grant of relief of maintenance in lieu of medical treatment of the appellant.
The Court concerned is directed to proceed further with the Suit in accordance with law.
Order date : 06.09.2014.
ss