S.V. Parthasarathy Battachariar and S.P. Jayamani vs S. Rajeswari, S. Kiran Kumar and S. Harish Kumar (represented by their mother and next friend S. Rajeswari )

G. Rajasuria, J.—Inveighing the order dated 26.08.2008, passed by the Additional District Judge, Fast Track Court No. I, Chengalpattu, in

I.A. No. 65 of 2008 in O.S. No. 364 of 2005, this civil revision petition is focussed.

Pithily and precisely, tersely and briefly, by way of avoiding discursive discussion, the relevant facts which are absolutely necessary and germane

for the disposal of this revision petition could be portrayed thus:

The respondents/plaintiffs herein filed the suit O.S. No. 364 of 2005 seeking the following reliefs:

a) usual preliminary decree for partition of the suit properties into 5 equal shares and for allotment of one such share to plaintiffs by metes and

bounds

b) for costs of this suit; and

c) for such other relief.

Written statement was filed in the suit. During the pendency of the suit, I.A. No. 65 of 2008 was filed by the plaintiffs seeking interim maintenance

from D1 and D2 who are none, but the father-in-law and mother-in-law of first plaintiff and paternal grand parents of the minor plaintiffs 2 and 3.

Counter was filed by the respondents/defendants 1 and 2 in the I.A. The trial Court on hearing both sides awarded interim maintenance payable by

D1 and D2 in favour of the first plaintiff in a sum of Rs. 3,000/- per month and a sum of Rs. 1,000/- per month each in favour of minor plaintiffs 1

and 2.

Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds, inter alia thus:

There is nothing to indicate and exemplify that the husband of the first plaintiff and father of plaintiffs 2 and 3 died or deemed to have died and only

while adjudging the main suit, the Court could decide on that. In such a case, awarding of interim maintenance by the D1 and D2 in favour of the

plaintiffs is not tenable. The father-in-law as per Hindu Adoption and Maintenance Act should maintain only a widowed daughter-in-law having no

source of income. In the absence of evidence, the lower Court was not justified in passing such order in the I.A.

Despite printing the names of both sides, there is no appearance.

A plain poring over and perusal of the typed set of papers including the copy of the order of the lower Court would demonstrate and display,

project and convey that according to the plaintiffs, the whereabouts of S.P.Sampath the husband of the first plaintiff and father of minor plaintiffs 1

and 2 was not known for more than seven years and that he is deemed to have died and that the plaintiffs are entitled to partition of the suit

properties and allotment of 1/5th share as Sampath happened to be one of the co-sharers along with, namely D1, D3, D4 and D6.

The plaintiff has come forward with a categorical version in her affidavit that her husband disappeared and his whereabouts were not known for

about eight years; she has been suffering a lot with her two minor children as she has no source of income. Whereas, D1 admittedly is having

enough source of income and hence she prayed for maintenance, pending disposal of the suit. The contention on the part of the respondents/D1

and D2 that the Court has not so far decided as per Section 108 of the Indian Evidence Act the deemed death of Sampath, is not germane for

deciding the I.A. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon''ble Apex Court reported in Amarjit

Kaur Vs. Harbhajan Singh and Another, . No doubt, the said precedent emerged out of a case between husband and wife, but the ratio found

embedded in the precedent is that the Court cannot call upon the seekers of maintenance to prove the entire case itself before seeking

maintenance. As of now, there is no indication from the respondents that the said Sampath is alive or he is very much living in some place. There is

also no iota or miniscule, shred or shard of evidence to indicate and demonstrate that the plaintiffs suppressing the very existence of Sampath have

chosen to file this I.A. claiming maintenance. Hence, at the time of deciding the I.A. for maintenance, the lower Court was not expected to delve

deep into the contentious issues in the suit.

Ex facie and prima facie, it has been made out by the plaintiffs that they have no source of income to maintain themselves and the defendants 1

and 2 being the in-laws of first plaintiff and paternal grand parents of P2 and P3, having source of income should maintain them.

A plain reading of Section 19 of the Hindu Adoption and Maintenance Act would exemplify and demonstrate that a widowed daughter-in-law,

who is having no source of income, could claim maintenance from her father-in-law. However, there is no express provision contemplated in the

Hindu Adoption and Maintenance Act that a grand son could claim maintenance directly from the grand father. Even then, the matter has to be

viewed holistically and pragmatically. While assessing the financial wherewithal of the first plaintiff, her commitment to maintain her minor sons

should necessarily be taken into account and in isolation the requirement of the daughter-in-law alone to meet her creature comforts should not be

viewed or visualised. There is no embargo under the law that while assessing the financial wherewithal of a widowed lady her commitment to

maintain her children should not be taken into account. No doubt, if taken into account, indirectly it might impinge upon the first defendant-the

father-in-law of the first plaintiff to some extent but not to the fullest extent. Even if there be, to some extent, additional commitment on the part of

the father-in-law in paying maintenance to the daughter-in-law, that is well within the principle of natural justice and also the object of the Hindu

Adoption and Maintenance Act.

Even though in the Hindu Adoption and Maintenance Act, there is no indication that grand parents should maintain the grand children,

nonetheless in the facts and circumstances of this case, the plaintiffs are also claiming to be the sharers in the suit property and they are not deriving

any income from the suit properties. In such a case, the respondents who are in possession and enjoyment of the joint family properties should part

with some portion of the income from the joint family properties, pending suit in favour of the minors and in that view of the matter, the lower Court

awarding interim maintenance in favour of the minors cannot be found fault with. I also make it clear that in the event of partition decree being

passed and directing the sharing of mesne profits by the defendants, the interim maintenance actually stood paid as on the date of such sharing

should correspondingly be adjusted.

Regarding quantum of maintenance is concerned, the lower Court awarded only a sum of Rs. 3,000/- per month in favour of the first

petitioner. Taking into consideration the present day cost of living, the first plaintiff who happens to be the daughter-in-law of the

respondents/defendants 1 and 2 who are having sufficient status of their own as per the facts found set out in the written statement, is entitled to

lead a reasonably comfortable life. To meet her creature comforts; to keep her body and soul together; to keep the wolf from the door and to

keep the pot boiling, she would require atleast a sum of Rs. 100/- per day and as such, in a month roughly it comes to Rs. 3,000/- and that amount

includes her medical, travel expenses and such like. Similarly awarding a sum of Rs. 1,000/- in favour of each of the minor plaintiffs 2 and 3 by no

stretch of imagination could be labelled or dubbed as excessive or exorbitant and it requires no elaboration so as to justify such awarding

maintenance. As such, the lower Court''s approach in dealing with the I.A. for interim maintenance warrants no interference.

In the result, I could see no merit in this civil revision petition, accordingly the same is dismissed confirming the order of the lower Court.

However, I make it clear that in the event of respondents/D1 and D2, actually paying the maintenance, the interim maintenance so paid shall stand

adjusted proportionately in the share of the plaintiff''s mesne profits. No costs. Consequently, connected miscellaneous petition is closed.