AIR 1975 Cal. 260
Order 33 of the Civil Procedure Code, Section 18 and 20 of the Hindu Adoption and Maintenance Act.
The petitioner contended that the application for maintenance pendente lite is untenable during the pendency of the application for leave to sue as a pauper on the ground that there is no suit under which the application may be made, must be dismissed.
The other contention raised on behalf of the petitioner was that no application for maintenance pendente lite lies and therefore the court has no jurisdiction to render such order referring to the absence of any relevant provision under the Hindu Adoption and Maintenance Act, 1956.
1. Is the court competent to file a maintenance order pendente lite on a leave sue application as a pauper before such leave is granted?
2.Can an order for maintenance pendente lite be made during a suit for maintenance where the rights of the parties are governed by Hindu Adoption and Maintenance Act?
The court held that Sections 18 and 20 of the Hindu Adoption and Maintenance Act confer the substantive right to maintenance.
The court held that such an order could not be made under the inherent power of the court that was protected by section 151 of the code when the question is in dispute.
The right to interim maintenance is a part of the right granted by Section 18 and Section 20 of the Hindu Adoption and Maintenance Act.And therefore, the right is enforceable in a maintenance action.
The right to interim maintenance may be exercised by an application for assistance to the suit, and a decision may be validly made by the Court on such an application in the exercise of its inherent power protected by Section 151 of the Civil Procedure Code.
Needless to say, only in a proper case where the plaintiff has convinced the Court that she has a strong prima facie case to entitle her to such an order can the Court exercise that power.
Article 226 of the Constitution of India
Article 226 of the Constitution.