Durga Bai vs Mangi Lal

V.S. Kokje, J.—This case arisen out of unusual circumstances. The applicant brought a suit claiming maintenance from the non-applicant alleging that she was a legally wedded wife of the non-applicant from whom three issues were born to her. Two of them are since dead and one daughter Bhagwatibai has been married off.

The applicant/plaintiff has alleged that she cohabited with the non-applicant for 15 years and when she noted illicit relations of the non-applicant with one Gulab Bai and objected, she was thrown out of the house by the non-applicant. In the plaint maintenance has been asked for on the basis of an oral agreement also laid to have been entered into between the non-applicant and the father of the applicant. In Paragraph 8 of the plaint, it has been alleged that when the applicant/plaintiff was minor her father agreed to give her away in marriage to the non-applicant on condition of his settling 10 acres of land or Rs. 200/- per month for separate living and maintenance of the applicant to ensure that she is not illtreated or condoned by the non-applicant. A prayer for interim maintenance was also made.

In answer to the application for interim maintenance, the non-applicant filed a reply supported by an affidavit. This affidavit is more eloquent than the written statement or any other pleading. In this affidavit dated 15-3-88 the non-applicant has in paragraph 3 stated the applicant Durgabai had lived with him for some time and a daughter Bhagwatibai was born out of that relation. In this very paragraph it has been alleged that about 20 years back Durgabai-the applicant deserted the non-applicant and the applicant had no other issue than Bhagwatibai from the non-applicant. This clearly shows that the relationship, may be illicit, has been admitted between the parties. However, the trial court proceeded on the basis that it was an application under Hindu Adoption and Maintenance Act and rejected the same ignoring the pleading of an agreement between the non-applicant and the father of the applicant pleaded by the applicant. Against the rejection of the application for interim maintenance now the applicant has come up in revision.

Having gone through the record of the case I find that the trial court has examined the case only from the angle of validity of the marriage under (he Hindu Law. It has failed to examine the case on the basis of the alleged agreement between the non-applicant and the applicant''s father. Even the parties arguing before laid stress on the point whether maintenance can be claimed by a person who claims to be the second wife. To my mind real controversy between the parties is as to whether an agreement entered into by a minor girl''s father with a major person giving his daughter in marriage to such a person on certain conditions can be enforced at law or not. This is an arguable point and can not be brushed aside by summarily rejecting it.

In the present case from the material on record it is clear that there is a prima facie case in favour of the applicant/plaintiff. The equity is also in her favour as admittedly the non-applicant had sexual relation with her and has also begotten a daughter from her. In such a situation, when there is no answer as yet given to the plea that the applicant was minor at the time she was given away in marriage by her father to the non-applicant on certain conditions, the applicant can not be deprived of maintenance only on the ground that she is not legally wedded wife of the non-applicant.

In these circumstances of the case the applicant who alleges that at the time of giving away in marriage to the non-applicant she was a minor cannot be blamed for the situation and the non-applicant cannot be allowed to take advantage of his own wrong in taking the applicant as second wife or a concubine. The non-Applicant''s acceptance of the fact that he had relations with the applicant and a daughter was born out of these relations should be enough at this stage of the case to ask him to pay maintenance to the applicant.

The question of enforcement of an agreement contrary to law or opposed to public policy would also not arise in the case because the applicant has alleged that when she was given away in marriage by her father to the non-applicant she was a minor. She can not therefore, be punished by depriving her of maintenance on the ground that she was trying to enforce an agreement which is opposed to public policy.

For the aforesaid reasons, I find that the impugned order which takes too technical a view of the case and which does not consider on (he alternative grounds of claim railed by the applicant/plaintiff deserves to be set-elide and is hereby set-aside. The non-applicant shall pay to the applicant Rs. 200/- per month by way of maintenance from the date of the application for interim maintenance till the date of disposal of the suit. The arrears accrued till the month of October 1992 shall be paid within three months from today and from the month of November, 1992, (he non-applicant shall start paying Rs. 200/- per month to the applicant on or before 15th of every month. The non-applicant shall also bear the coils incurred by the applicant in this case. Counsel''s fee Rs. 500/-.