Mahadev Shivabasappa Padadalli vs Kumari Sanjana and Others

K.N. Phaneendra, J.—The petitioner called in question the orders passed on IA No. VI in OS No. 212/2014, wherein, the trial Court has granted Rs. 2,000/- per month to the plaintiffs (jointly) towards the litigation expenses/interim maintenance from the date of the order till the disposal of the suit. The husband entered caveat and represented by Sri Sachin S. Magadum. I have heard the arguments of the learned counsel for the petitioner and the respondents.

The ranks of the parties as per their ranks before trial Court is retained to avoid confusion.

The plaintiff No. 1 claimed herself as daughter and the plaintiff No. 2 who is wife of the defendant No. 1 filed a suit for partition and separate possession against the defendants. During the course of the trial the plaintiffs have filed an application seeking litigation expenses or by way of maintenance in order to contest the suit effectively. Defendant No. 1 has entered into appearance in the said suit and contested the suit by filing written statement specifically taking of the contention that plaintiff No. 2 was minor at the time of marriage between himself and plaintiff No. 2 and plaintiff No. 1 is not the child born to him and he is not the father of the said child and he has specifically denied the said relationship and alleged extra marital relationship on plaintiff No. 2 is concerned with some other persons.

After hearing the parties, the trial Court has come to the conclusion tentatively that the petitioners are entitled for maintenance during pendency of the suit. Admittedly, properties involved in the suit are claimed to be ancestral and joint family properties of the defendants wherein defendant No. 1 is also having share in the property. Further added to that there is clear admission on the part of the defendant No. 1 with regard to the relationship between himself and plaintiff No. 2. He only refutes the relationship of plaintiff No. 1. When the marriage is admitted, the initial presumption has to be drawn unless it is rebutted by the defendant No. 1 that the child born to him and plaintiff No. 2 is deemed to the child of the said parents unless it is rebutted during the course of the evidence. Therefore, the trial Court is right in holding that the petitioners are entitled to the amount of Rs. 2,000/- per month as expenses as mentioned, during the pendency of the suit. I do not find any strong reason to interfere with the opinion expressed by the learned Judge.

Learned counsel for the petitioner also brought to my notice that the plaintiffs have also filed a petition in Domestic Violence Act in DVA No. 12/2013 on the file of Prl. Civil Judge and JMFC Gokak. But as could be seen from the order sheet produced by the learned counsel for the respondents, there is no interim order or any maintenance order passed in favour of the plaintiffs (the petitioners in the said case). However, it is made clear that the petitioner is at liberty to produce the order passed in this particular case in O.S. No. 212/2014 before the Domestic Violence case in order to enable the said Court to pass appropriate orders on merits of the said case, considering the said facts. With this observation, the present petition is dismissed.