Husband missing for seven years-wife claiming maintenance from father in law
The plaintiff has come forward with a categorical version in her affidavit that her husband disappeared and his whereabouts were not known for about eight years; she has been suffering a lot with her two minor children as she has no source of income. Whereas, D1 admittedly is having enough source of income and hence she prayed for maintenance, pending disposal of the suit. The contention on the part of the respondents/D1 and D2 that the Court has not so far decided as per Section 108 of the Indian Evidence Act the deemed death of Sampath, is not germane for deciding the I.A. At this juncture, my mind is redolent and reminiscent of the following decision of the Hon'ble Apex Court reported in (2003) 10 SCC 228 Amarjit Kaur vs. Harbhajan Singh. No doubt, the said precedent emerged out of a case between husband and wife, but the ratio found embedded in the precedent is that the Court cannot call upon the seekers of maintenance to prove the entire case itself before seeking maintenance. As of now, there is no indication from the respondents that the said Sampath is alive or he is very much living in some place. There is also no iota or miniscule, shred or shard of evidence to indicate and demonstrate that the plaintiffs suppressing the very existence of Sampath have chosen to file this I.A. claiming maintenance. Hence, at the time of deciding the I.A. for maintenance, the lower Court was not expected to delve deep into the contentious issues in the suit.
Madras High Court
S.V.Parthasarathy Battachariar vs S.Rajeswari on 3 March, 2009
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