IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 7 of 2008 Date of Decision: 8th October, 2010 Jawahar Singh Appellant Versus Smt. Jamna Devi Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Bhupender Gupta, Sr. Advocate, with Mr. Janesh Gupta, Advocate. For the respondent: Mr. B.S.Chauhan, Advocate. Sanjay Karol, J. (Oral) This is the defendant’s Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. Appeal was admitted on the following substantial questions of law:- 1. When in the suit, the plaintiff-respondent did not challenge the legality and validity of the compromise Agreement D1 and D2 whereby amount of maintenance was fixed with consent, have not both the Courts below acted in erroneous and perverse manner to hold that such compromise was opposed to public policy and was not enforceable? 2. Whether both the Courts below have acted in erroneous and perverse manner in not appointing the Local Commissioner for local investigation to ascertain the income of the plaintiff-respondent from 1Whether the reporters of Local Papers are allowed to see the Judgment? the orchard, was not the application for appointment of Local Commissioner illegally rejected by the trial Court and lower Appellate Court failed to ignore this aspect of the matter which has resulted in failure of justice? 3. Whether the Lower Appellate Court has acted beyond its jurisdiction in recording the findings of alleged unchastely attributable to the defendant- appellant when there were no pleadings, evidence or issue in this regard not the plaintiff made any allegation of such a nature? 2. At the time of hearing, parties confined their submissions only with respect to question No.3. 3. Plaintiff is the defendant’s wife. She filed a suit for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, (hereinafter referred to as the Act). Suit was instituted on 2.1.2001 when the son born out of the wedlock was minor. However, he is not a party to the suit. 4. Defendant contested the suit and based on the pleadings of the parties trial Court struck the following issues:- “1. Whether the plaintiff is entitled for maintenance from the defendant, at the rate of Rs.4000/- per month, as alleged? OPP 2. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPR. 3. Whether the plaintiff is estopped from filing the present suit? OPD. 2 4. Whether the suit of the plaintiff is not maintainable and this Court has no jurisdiction to entertain this suit as alleged? OPD 5. Whether the suit of the plaintiff is not properly valued for the purpose of court fee? OPD. 5. Plaintiff’s suit was decreed in terms of judgment dated 27.11.2006 passed by Civil Judge (Sr. Division), Shimla, in Suit No. 60/1 of 2001/2006. Plaintiff was held entitled for maintenance for life @ ` Rs.4000/- per month from the date of institution of the suit during her life time. 6. Defendant filed appeal, which stand dismissed by the learned Addl. District Judge, Fast Track Court, Shimla, H.P. in terms of impugned judgment and decree dated 1.0.2007 passed in Civil Appeal No. 4-S/13 of 2007 and the findings returned by the trial Court were upheld. 7. Defendant is aggrieved of the following findings returned by the lower appellate Court :- “This shows that the defendant is having illicit relations with Smt. Illa Devi and she has even given birth to a son and a daughter from the loins of the defendant. As the defendant is living with an other woman and is leading an unchaste life, it entitles the plaintiff to live separately from him and claim the maintenance allowance.” 8. These findings returned only by the lower Appellate Court are absolutely uncalled for. They are not borne out of any record. While holding the same the Court has been too presumptuous. No issue was struck on the point of defendant leading an unchaste life. 3 Similarly, paternity of children born out of Smt. Illa Devi, who undisputedly are residing with the defendant was not in issue. Defendant has explained the circumstances in which she has been residing with him. The trial Court also did not record any findings on this aspect of the matter. The Court below, in my considered view went overboard in recording such findings. Substantial question of law is answered accordingly. 9. In view of aforesaid, findings as reproduced hereinabove are reversed and the appeal is partly allowed. It is clarified that plaintiff shall be entitled to maintenance in terms of the decree. 8th October, 2010 (Sanjay Karol) (C) Judge. 4