Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 4918 of 2019 Petitioner :- Smt. Usha Devi Respondent :- Jai Shankar Counsel for Petitioner :- Anand Pati Tiwari
Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the petitioner.
The petitioner herein claims to be wife of respondent-defendant against whom she has filed a Suit No. 22 of 2019 under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (In short "the Act").
The petitioner seeks maintenance to the tune of Rs. 5,000/- from the respondent on the premise that her husband is not maintaining her in a proper manner. Simultaneously, a relief of declaration has been sought to declare that the amount of Rs. 5,000/- to be fixed towards maintenance shall be treated as charge over the immovable property/agricultural plot owned by the respondent/defendant.
A further relief of permanent injunction has been sought restraining the defendant from transferring or alienating the suit property to a third party.
Learned counsel for the petitioner vehemently submits that the order impugned for rejection of interim injunction application filed in Suit No. 22 of 2019 cannot be sustained, inasmuch as, Section 18 of the Act cast a duty on the court to fix maintenance, in case, husband refuses to maintain his wife and further to see that monthly maintenance is paid to the estranged wife regularly.
It is contended that the disputed property is the only source of livelihood of the defendant and in case, he proceeds to sell the same, he would be able to deny the maintenance fixed by the court in the present suit. It is, thus, contended that in order to balance convenience of the petitioner, it was incumbent on the Family Court to pass interim injunction order restraining the defendant/respondent from alienating the suit property.
These submissions of the learned counsel for the petitioner are found misconceived from a careful reading of the provisions as contained in Section 18 readwith Sections 27, 28, 39 of the Act as considered by the court below in the order impugned.
A careful perusal of the said provisions indicates that the maintenance granted to wife is not to be treated as charge on the immovable property of the husband. In case of maintenance being granted by the Court, it has to simply ensure that the same is paid by the husband regularly and in case of any non- payment on the part of the husband, appropriate action can be taken against him in accordance with law.
Moreover, to fix monthly maintenance, the stand of the wife that her husband is not maintaining her has to be examined by the court concerned.
In the instant case, the petition under Section 18 of the Act has been filed by the wife seeking maintenance from her husband. Unless and until she establishes denial on the part of the husband to maintain her, she cannot seek interim injunction restraining her husband from alienating the agricultural plot owned by him as Bhumidhar.
The submissions of learned counsel for the petitioner to assail the findings returned in the order impugned, therefore, are found misconceived.
The writ petition is dismissed being devoid of merits.
Order Date :- 26.6.2019 Brijesh