Legal Question in Family Law in India
Maintainability of Misc. Civil application for maintenance under hindu adoption
Sir,
A Hindu marriage petition was filed against me for maintenance u/s 18 (1) & 2(a),(b) of hindu adoption & maintenance act. In the said petition preliminary objection was raised stating that hindu adoption & maintenance act is not covered under hindu marriage act so she cannot file HMP but can file civil suit only under this act. In reply she prayed to the Hon�ble court to convert HMP into misc civil application u/s 151 of CPC. Is it not true that misc civil application is allowed to be filed in main petition only. But here there is no main petition other than this. So is misc civil application allowed in this matter? Moreover I had also filed an application under order 14 rule 2 raising objection as to jurisdiction. Inspite of going into the merits/demerits of these two issues, the Hon�ble court passed an interim maintenance even though she was already receiving Rs. 500/- p.m. under Cr.P.C. 125. So is it advisable to appeal against this order in Highcourt on these two grounds.
1 Answer from Attorneys
Re: Maintainability of Misc. Civil application for maintenance under hindu adopt
Yes, it is worthwhile to file an appeal. The reasons and logic for filing such appeal is as under :
Section 24 and 25 of the Hindu Marriage Act envisages relief to the petitioner for obtaining pendentelite maintainance or permanent alimony. If the petition, as appears to be stated in your query is a petition under Hindu Marriage Act, (HMP)then in such event, provisions of section 151 of the CPC, cannot be invoked since section 151 of CPC is applicable only when there is no specific provision in the code to rectify the defect in the filing. O. 23 of the CPC in the context can be invoked to withdraw such petition suffering from formal defect. Fresh suit under Hindu Adoption and Maintainance Act can be filed in the civil code with the permission of the court in which such petition was wrongly filed earlier. However, it may be noted that the end result would not help you much because the right to file maintainance cannot be vitiated in any way. Further, the amount of Rs. 500/- (Five hundred) per month granted as maintainance allowance under the proceedings of section 125 of Cr.P.C. can be adjusted while granting maintainance under the said petition.
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