FIRST APPEAL No.22 OF 1992 (Against the judgment and decree dated 11.10.1991 passed by Sri Sheo Narain Mahto, Sub Judge-X, Patna in Title Suit No. 38 of 1990/9 of 1991) Smt. Rajeshwari Gupta & Anr. .......Plaintiffs/Appellants -Versus- Sri Raj Kumar Prasad………defendant/respondent. For the appellant- Mr. Kumar Alok, Advocate Mr. Nawal Kishore Prasad, Advocate For the respondent: Mr. K.M. Joseph & Mr. Hemant Kumar, Advocates Dated/ The 15th day of July, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo, J. J U D G M E N T The plaintiff/appellant has filed this First Appeal against the judgment and decree dated 11.10.1991 by Sri Sheo Narain Mahto, Sub Judge-X, Patna in Title Suit No. 38 of 1990/9 of 1991 decreeing in part the plaintiff/appellant’s suit. 2. The appellant filed the aforesaid Title Suit No. 38 of 1990/9 of 1991 praying therein for a declaration that the plaintiffs are entitled to get maintenance allowance 2 at the rate of Rs 600/- per month. 3. According to the appellants, the plaintiff/appellant No. 1 is legally wedded wife of the defendant/respondent and out of their wedlock; the plaintiff No. 2 was born in the month of Chaitra, 1985. Since last two years, the defendant/respondent is neglecting the plaintiffs/appellants and started drinking wine and on protest, he was assaulting them. The defendant also attempted to throw her out of the residential house but could not succeed. The further case is that the defendant was dismissed from his service and he is residing in the said house with the plaintiffs/appellants but is refusing to maintain plaintiffs. In Panchayati also, the defendant assured them to maintain but he is not maintaining them. The plaintiffs are helpless. On these facts, the plaintiffs’ claimed that Rs 600/- per month maintenance be allowed and the plaintiffs be allowed to sell the residential house of the defendant and realise the arrears amount of maintenance out of the sale proceed. 4. It appears that the defendant/respondent did not appear in the court below in spite of service of notice. The suit was decided ex parte. On the basis of the evidence adduced on behalf of the plaintiffs/appellants, the learned court below found that plaintiff No. 1 is the legally wedded wife and plaintiff No. 2 is the daughter out of the wedlock and are, therefore, entitled to maintenance but at the same time, the learned court below found that the 3 defendant is unemployed and is residing in the same house with the plaintiffs. The learned court below also found that there was no evidence in support of the income of the defendant. On these grounds, the learned court below declared that the plaintiff No. 1 is the wife and plaintiff No. 2 is daughter and are entitled to maintenance and decreed the suit granting the said declaration and refused to grant any relief regarding maintenance. 5. The learned counsel for the appellant submitted that the learned court below should have granted the relief of maintenance also. The learned counsel submitted that now the defendant has been reinstated in his service and is getting Rs 10,000/- per month and, therefore, taking this subsequent event, the appellants be granted Rs 5,000/- per month as maintenance. 6. An interlocutory application being interlocutory application No. 391/09 has been filed by the appellant under section 25 of the Hindu Marriage Act read with section 151 of the Code of Civil Procedure. In the said application, it is stated that the defendant/ respondent is getting Rs 10,000/- per month and prayed that Rs 5,000/- per month be awarded to the appellant as monthly maintenance. 7. The learned counsel appearing for the respondent submitted that in fact, the appellants have got ex parte decree without service of notice on the defendant 4 and, therefore, a Misc. Case has been filed by the respondent for setting aside ex parte decree. The learned counsel further submitted that regarding the monthly maintenance claimed in the interlocutory application is concerned; the same cannot be the subject matter of this appeal. According to the learned counsel, the appellants may raise all these questions before Family Court, if so advised, because there is no evidence available on the record and sufficient opportunity should be given to the respondent to adduce evidence contrary to the claim. 8. In view of the above facts and circumstances of the case, and submissions of the learned counsels for the parties, the point arises for consideration in this appeal is as to whether that part of the impugned judgment and decree whereby monthly maintenance claimed at Rs 600/- has been refused is illegal or not? F I N D I N G S 9. The plaintiffs filed the suit claiming two reliefs. Firstly, that they be declared that they are wife and daughter and are entitled for maintenance. Secondly, that Rs 600/- per month should be awarded as maintenance. The learned court below decreed the first claim of the plaintiff. So far second claims is concerned, the learned court below found that on the date of judgment, it was the case of the plaintiffs itself that the defendant was unemployed and was residing in the same house where the appellants are residing. So far these facts are 5 concerned; there is no amendment in the plaint. No evidence has been adduced by the plaintiffs showing the income of the defendant/respondent. 10. The interlocutory application has been filed alleging that now the defendant has been reinstated in his service and is getting Rs 10,000/- per month and so far this application is concerned, it has been filed u/S 25 of the Hindu Marriage Act. Since this suit itself was not a proceeding filed under Hindu Marriage Act, section 25 of the Hindu Marriage Act is not applicable. The said application cannot be treated as pleading. If it is now treated as amendment application, then evidence is necessary in support of the claim. 11. In view of the above discussions, it appears that the court below found the fact that there was no evidence regarding status and monthly income of the defendant and refused to allow the maintenance and also refused to allow the respondent to sell the residential house for recovery of arrears of maintenance. It was also found that the defendant and plaintiffs were residing together in the said residential house. I, therefore, found no illegality in the finding of the learned court below on these points. Therefore, findings are hereby confirmed. 12. It is admitted that a Matrimonial (Divorce) case was filed by husband which was dismissed and Appeal is pending before this court. No application u/S 24 H.M. Act has been filed in the appeal. 6 PatnaHighCourt,, the 15.th day of July, 2010 AKV/AFR 13. As stated above, the plaintiffs have filed the interlocutory application. The merit of the interlocutory application cannot be decided in this First Appeal and on the basis of this, finding of the learned court below cannot be interfered with. If so advised, the appellant may approach appropriate forum raising all these points claiming maintenance. If such application is filed, before appropriate forum, the said application may be decided according to law. Certainly the application u/S 25 of the Hindu Marriage Act is not applicable in the present case. However, the appellant is granted liberty to file appropriate application before appropriate forum. 14. In view of the above facts and circumstances of the case, I find no merit in this First Appeal and accordingly, this appeal is dismissed with the above observation to the effect that the appellant is at liberty to approach an appropriate forum by filing appropriate application claiming maintenance. (Mungeshwar Sahoo,J.)