DILIP KUMAR Vs. SPECIAL JUDGE BARABANKI

JUDGEMENT

(1.) This writ petition is directed against the concurrent orders of the Courts below directing the petitioner to pay maintenance allowance to respondent No. 3 during the pendency of the suit.

(2.) The petitioner Dilip Kumar has instituted a suit for declaration against Smt. Vimla Devi respondent No. 3 in the Court of Civil Judge Barabanki. The relief which has been claimed by the petitioner in the suit is that it may be declared that there is no relationship of husband and wife between the parties with effect from 29/07/1987. The suit has been brought on the allegations that the marriage between the parties has been dissolved by mutual agreement according to custom. This allegation is denied by respondent No. 3. During the pendency of the suit respondent No. 3 moved an application dated 16/11/1988 that the petitioner may be directed to pay her a sum of Rs. 1,000.00 as expenses for litigation and Rs. 500.00 per month as maintenance pendente lite. The petitioner filed objection against the said application. The learned Civil Judge partly allowed the application of respondent No. 3 by order dated 17/07/1989. He rejected the prayer for expenses but he directed payment of a sum of Rs. 200.00 per month as maintenance during the pendency of the suit. The learned Civil Judge took the view that since the suit involves the determination of marital rights the Court has jurisdiction to grant pendente lite mcintenance in exercise of its inherent powers under Section 151 CPC. The petitioner filed a revision against the aforesaid order. The learned Civil Judge, Barabanki affirmed the above view and dismissed the revision by order dated 25/01/1990. This writ petition has been filed by the petitioner for quashing the orders dated 17/07/1989 and 25/01/1990 which are respectively contained in Annexures 4 and 5 to the writ petition.

(3.) The question arising for determination in this writ petition is whether in a suit for declaration that the relationship of husband and wife does not exist between the parties, the Court has jurisdiction under Section 151 CPC to pass an interim order directing payment of maintenance during the pendency of the suit. At the very out set, it may be observed that my attention has not been drawn to any case in which this point has been specifically decided by this Court or the Supreme Court. The judgments of the Courts below contain a reference to certain cases which were cited by the counsel for the parties in support of their respective contentions. Among those cases in Sivankutty v. S. Komalakumari, AIR 1989 Kerala 124 and Khandal Penthi v. Hulash Dei, AIR 1989 Orissa 137 (FB) it has been held that an order for interim maintenance may be passed in favour of the wife in a suit for maintenance brought by her against the husband. These cases are not very apposite because the matter was considered in relation to a suit for maintenance which is different in nature from a suit for declaration.