An application for interim maintenance is maintainable in a suit filed in forma pauperis under Section 18 of the Hindu Adoptions and Maintenance Act.

1. Smt Santosh Kumari, respondent herein, has filed a suit against her husband, apppellant herein, under Sec.18 of the Hindu Adoptions and Maintenance Act, (for short Act, hereafter), for grant of maintenance, which is pending disposal in the court of learned 1st Additional District Judge Jammu. During the course of these proceedings, she moved an application for interim maintenance and claimed Rs.400/- P.M. on the ground that her husband had contracted a second marriage with Maina Kumari D/o Om Parkash and had neglected her. The appellant took a plea that the application was not maintainable and further that he was not in a position to pay any interim maintenance to the respondent. Learned 1st. Addl District Judge firstly decided the question of maintainability of the petition against the appellant and after wards after recording evidence of both the parties granted Rs.275/- P.M. as interim maintenance to the respondent. Aggrieved by this order the appellant has coriiein appeal before this court.

2. I have heard the learned counsel for parties. Learned appearing for the appellant has taken two pleas firstly that the application for interim maintenance was not at all maintainable under law and secondly excessive amount of Rs.275/- P.M. has been granted to the respondent compared to the income of the appellant. Learned counsel for the respondent has, however argued that the question regarding maintainability has already been disposed of by the trial Court which was not agitated before any appellete cannot be allowed to raise such a plea. Regarding the second contenion of the appellant learned counsel has contended that the was a teacher getting Rs.1000/- P.M as pay and the amount of Rs.275/- P.M. granted to the respondent was not exclusive in any manner. I have considered these pleas raised by either side.

3. It is true that the learned 1st. Addl. District Judge firstly decided the question of maintanance of application for interim maintenance an after discussing law on this point decided the matter in favour of the dent: herein on Feb 8,1985 but the appellant did not come up in revisi against that order. I however, feel that there is ho bar raising the same point before this court at this stage being a law point. The respondent herein filed the suit for maintenance against her husband in forma pauperis.

4. Learned counsel for the appellant has referred to authorities, AIR 1984 Punjab Haryana 40 and AIR 1985 Orisa 11 in support of his contentions. In the former authority the Single Bench of Punjab and High Court has held that an application by wife for interim maintenance cannot be maintained while her application to sue her husband in pauperis for maintenance is still pending. In the latter case Orisa High Court has held that under sec. 18 of the Hindu Adoptions and Maintet Ace the right conferred by sub-sec.1 is subject to other provisions of that sections and wife would loose her right of maintenance if she lives separate from her husband without existence of any of the grounds or reason mentioned in sub-see. (2).

5. Learned counsel for the respondent has pointed out two authorities. AIR 1958 Patna 264 and AIR 1964 Rajasthan 279 in support of his contentions that in a pauper suit wife is entitled to interim maintenance. The Full Bench of Patna High Court in the above referred authority has held that order 33 C.P.C. prescribes made for institution of a suit by a pauper and the suit is institution or commences from the moment application for permission to sue in forma pauperis is presented and in that view of the matter there is do difficulty in applying the provision of the otdet 39 C.P.C. for making an order of injunction while application of the pauper to sue in forma pauperis is pending consideration. In this authority their lordships of Patna High Court bave relied upon AIR 1939 Madras 80, AIR 1973 Bombay 143, AIR 1917 Calcutta 852 and AIR 1955 Nagpur 259. The Rajasthan High Court fias taken the same view in the above refe

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