(1.) This matter arises out of an order dated 21.9.2012 passed by the learned Civil Judge (Senior Division), Khurda rejecting an application under Sec. 151 of the Code of Civil Procedure at the instance of the plaintiff-petitioners in C.M.A.No.82 of 2012 arising out of C.S.No.26 of 2011 for awarding interim maintenance on the premises of maintainability of the same.
(2.) Fact involved in the case is that after the death of predecessor-in-interest of the petitioners, defendant nos.1 to 3, the father-in-law of the petitioner no.2 and his two other sons created disturbance and deprived the petitioners from the usufructs compelling the petitioners for instituting a suit for partition of the properties by filing C.S.No.26 of 2011. The defendant nos.2 and 3 on their appearance filed a joint written statement refuting the plaint averments and raising thereby the question of maintainability of the suit. During pendency of the suit the petitioners being a distress family, filed an application under Sec. 125 of the Code of Criminal Procedure before the Learned Judge, Family Court, Khurda and the said application was dismissed as not maintainable. The order was challenged in this Court. This Court even though did not interfere in the impugned order directed for early disposal of the suit with an observation to see that the widow survives and gets at least her share on usufructs by appointing her father-in-law, present opposite party, as the receiver. As admitted by the opposite party, the attempt for appointment of receiver has gone frustrated as in there nothing available to be filed as return. Having no other source of income, the petitioners remain constrained to file an application under Sec. 151 of the Code of Civil Procedure for grant of monthly maintenance pending disposal of the suit, which application being rejected, the same is under challenge in the present writ petition.
(3.) Sri Dash, learned counsel appearing for the petitioners in substantiating his claim repeated his stand as quoted herein above and further taking resort to the provisions under Sections 7 and 8 of the Family Courts Act, 1984 submitted that in view of the specific purpose of the Family Courts Act, the dispute between the parties before the Family Court confines to marriage and proceedings arising out of such marriage and there cannot be any restriction for filing such application without getting involved into the question of marriage. Further, relying on catena of decisions in the cases of Devaki Antharjanam Vs. Narayanan Namboodiri & Anr., AIR 2007 Kerala 38 , Darshanaben & Ors. Vs. Shantibai Ratilal Parmar & Ors., AIR 2008 Gujarat 167 , P. Srihari Vs. Kum.P.Sukunda and another, AIR 2001 Andhra Pradesh 169 , G.Pentamma & Ors. Vs. G.Anjali, w/o G.Raghurameswar Rao & Anr., AIR.2010 Andhra Pradesh 224 contended that in view of the position settled by different Courts, the application at the instance of the petitioners was very much maintainable and it is in this view of the matter, the impugned order should be set aside.