BABY SAGARIKA JENA ROSY Vs. BISHNU CHARAN JENA

JUDGEMENT

(1.) This appeal filed by the mother of the two minor appellants is directed against the order dated 12-2-1982 passed by the learned Subordinate Judge. First Court, Cuttack in Misc. Case No. 23 of 1980 fixing a sum of Rs. 250 per month in respect of each appellant as maintenance and education expenses and directing the respondent, father of the two minor appellants, to spend the aforesaid amount towards the maintenance and education of the appellants.

(2.) The facts of the case may be briefly noted. The respondent and the mother of the appellants were married according to Hindu Vedic rites at village Mallikapur, district Cuttack on 13-6-1974 Out of this wedlock, the two appellants were born. As the marriage did not prove 'successful', the respondent and his wife lived separately for more than a year. Thereafter, on 23-3-1979 they filed a joint petition under Section 13-B of the Hindu Marriage Act. 1955 (hereinafter referred to as 'the Act') praying for a decree of divorce by mutual consent. This petition was registered as O. S. No. 16 of 1979. The decree for divorce was granted by the court by order dated 18-10-1979. Admittedly, the two minor appellants have been living with their mother. On 18-1-1980, the mother filed an application under Section 26 of the Act claiming maintenance and education expenses in respect of the two minor appellants. This application, filed after the decree of divorce, was registered as Misc. Case No. 23 of 1980. According to this application appellant No. 1 was born on 5-51976 and appellant No. 2 was born on 22-12-1978 out of the wedlock between the mother and the respondent and they are in the custody of the mother under her guardianship. The respondent, a Major in the Indian Army, draws, monthly emoluments of Rs. 3,000 approximately. The mother has only four acres of agricultural land in village Panikolli. The income from the agricultural land is just sufficient for her bare maintenance. On account of differences between the parents a decree of divorce by mutual consent was granted by the court by order dated 18-10-1979 and in the said decree no provision has been made for the maintenance and education of the appellants. It is further stated that each applicant would require approximately Rs. 3,000 per year towards maintenance and education expenses. The applicants have accordingly prayed that necessary provision be made by the court with respect to their maintenance and education.

(3.) In his objection, the respondent has challenged the maintainability of the application under Section 26 of the Act. It is stated that after the decree of divorce was granted to the parties, the court became functus officio and had no jurisdiction to entertain the application. It is admitted that the two appellants were born on the dates mentioned in the application filed by the appellants. It is stated that the mother has no authority under law to keen the minor children in her custody and that the interests of the minors shall be at jeopardy if the children remain with the mother. A competent court of law has already directed that the children shall remain with the respondent. The amount claimed as maintenance is stated to be high and excessive. The respondent has finally prayed that the petition filed by the mother on behalf of the children should be dismissed as he is ready and willing to take care of and look after the children.