The implied power to grant ad-interim maintenance under Section 19 of the Hindu Maintenance and Adoption Act, 1956, and the principles of interpretation of provisions of maintenance under the law.

Hemant Gupta, J.

1. The plaintiff is in revision petition aggrieved against the order passed by the first Appellate Court granting ad-interim maintenance on an application filed by the respondents for the grant of maintenance under the Hindu Maintenance and Adoption Act, 1956 (hereinafter referred to as the Act).

2. The petitioners sought maintenance of Rs. 5000/- per month by creating charge on the land measuring 68 kanals 14 marlas on the ground that they have no movable and immovable property and that they have no means to sustain themselves. It is alleged that the marriage of the petitioner No. 1 was solemnised with Jaswinder Singh son of the defendant, present respondent on 4.5.1997. Out of the said wed lock, petitioner No. 2 Inderjit Singh son was born. After the death of Jaswinder Singh in foreign country, petitioner No. 1 was forced to contract Kareva marriage with Jit Singh but since she did not agree she was given beating and was turned out of the house. In reply it was stand of the defendant that petitioner No. 1 has contracted second marriage with Jit Singh and is residing with him at village Nihaluwal.

3. During the pendency of such petition for maintenance, plaintiffs moved an application for the grant of ad-interim maintenance. The learned trial Court dismissed the said application relying upon a judgment of this Court reported as Makhan Singh v. Jagdish Kaur and Ors., (1991-2)100 P.L.R. 324 that there is no specific provision for the grant of interim maintenance and thus the application is not maintainable. The appeal was also dismissed on the ground that though the court has wide discretion to grant interim relief while exercising inherent powers under Section 151 of the Code of Civil Procedure but declined interim maintenance for the reason that the petitioner No. 1 has not filed replication to rebut the allegations of the respondent that she has contracted second marriage with Jit Singh. Still further it has been round that the suit for maintenance has been filed by plaintiff No. 1 by concealing true facts as plaintiff No. 1 has not pleaded that she has not inherited the estate of her father after his death although the mutation was produced to show his estate of his father has been sanctioned in favour of Jasbir Singh brother of petitioner No. 1. Therefore, the first Appellate Court found that the main suit for the recovery of maintenance as an indigent person was filed by concealing true facts.

4. Firstly, the learned counsel for the petitioner has argued that the finding given by the first Appellate Court that the petitioner No. 1 would be deemed to have contracted second marriage with Jit Singh for non-filing of replication is wholly erroneous. It is contended that any finding regarding performing of kareva marriage with Jit Singh can be returned only on the basis of evidence led before the learned trial Court as it is the categorical case of the plaintiff in the plaint itself that she has not performed kareva marriage with Jit Singh. Non-filing of replication will not raise any presumption. It is further argued that even it is prima facie found that the petitioner No. 1 has performed kareva marriage the petitioner No. 2 would in any case would be entitled to maintenance.

5. The said argument raised by the learned counsel for the petitioner could not be disputed by the learned counsel for the respondent in any plausible manner. The parties are not ad-idem on the question of kareva marriage with Jit Singh. Such question has thus necessarily to be decided on the basis of evidence which may be led during the course of trial. No finding can be returned against the plaintiff only for the reason that the replication has not been filed. Filing of replication is not mandatory for the plaintiff, the failure of which would entitle the court to raise a presumption against the plaintiff. Therefore, the said reasoning given by the first Appellate Court is wholly unjustified.

6. The other argument that the pla