Rajiv Narain Raina, J. - (1.) Heard learned counsel for the parties in the challenge to the order passed by the learned District Judge, Family Court, Bhiwani dismissing the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC'). The defendant prayed in the obstruction application that the suit for maintenance could not proceed except upon affixation of ad valorem Court-fee on the petition in terms of Section 7 of The court-fees Act, 1870 and in terms of the maintenance value quantified and prayed that the maintenance petition be dismissed for deficiency in payment of requisite court-fee. In the petition filed under section 20 of the Hindu Adoptions and Maintenance Act, 1956 ('the HAMA'), a claim is made for marriage expenses in a sum of 50 lacs from the defendant, the petitioner before this Court. The story narrated is that the defendant serves in the Indian Army in the rank of a Lieutenant Colonel. He was married off in accordance with the rule of custom to Smt. Sushila Kumari, the widow of his deceased brother. The respondent is the natural born daughter of late Sh.Suresh Kumar and Smt. Sushila Kumari. It is pleaded that the petitioner was two and half years of age at the time. In resisting the petition, the defendant chose to respond to the petition admitting in clear terms that Kumari Sneh Lata was his adopted daughter. This admission is made in paragraph 1 on merits of the written statement. If she is adopted, she would be deemed to be the child of the adoptive father in terms of section 12 of the HAMA. However, these matters need not be gone into for the present since they are for the trial court to consider as the concern here is save and express to the correctness of the impugned order passed by learned trial Judge declining the application under Order 7 Rule 11 CPC and proceeding with the petition.
(2.) Learned counsel for the petitioner raises preliminary ground of maintainability of the petition to submit that the remedy itself, if any, lies in the civil court and not by way of a petition under the HAMA, as the one pending in the Family Court at Bhiwani exercising powers under the said Act. He relies on the decision of the Himachal Pradesh High Court in Baldev Singh v. Pooja Devi, 2007(3) RCR (Civil) 150 to fortify his contention. This was a case where the petitioning daughter had brought a claim under the provisions of the Act against her father to meet her marriage expenses. The question of maintainability exclusively before the civil court was not taken in the application under Order 7 Rule 11 CPC which was restricted to the issue of charge-ability to ad valorem court-fee. This court, thus, would not go into it.
(3.) On the other hand, learned counsel for the respondent places reliance on a decision of the Supreme Court in Ruma Chakraborty v. Sudha Rani Banerjee & another, 2005(4) R.C.R. (Civil) 394 : 2005(8) SCC 140 to counter the contention of the petitioner. In this case a divorce was sought inter alia from the husband together with a claim for provision for food, clothing, residence, the three of the benefits provided other than education, medical attendance and treatment by section 3 (b) (i) of the HAMA together with maintenance expenses for their unmarried daughter, a right conferred by section 3 (b) (ii). The Supreme Court observed that there was such a liability fastened on the husband by virtue of marriage. However, these are in the main, matters for the trial Court to enter upon and decide.;