SM KAMANI DEVI ALIAS SAKUNTALA DEVI Vs. SIR KAMESHWAR SINGH OF DARBHANGA

JUDGEMENT

(1.) The facts and circumstances leading to this civil revision are shortly these: The petitioner Sm. Kamani Devi alias Shakuntala Devi alleges herself to be a cousin of the junior Maharani of the opposite party the Hon ble Maharajadhiraj Sir Kameshwar Singh of Darbhanga, and during the illness of the Maharani, she had to remain at the Darbhanga Palace at the request of the Maharani and her husband, the opposite party, between April a July, 1939. During her stay, there grew intimacy between the applicant and opposite party, and ultimately they married in the Gandharva form and lived as husband and wife with the result that the applicant conceived. Later, she was sent by the opposite party, under the care of her father, to the Patna General Hospital for delivery. In February 1940, a male child was born to her. All the while, the opposite party used to maintain her and bear all her expenses until 1 October 1940. On the opposite party's default to maintain her, with a view to enforce her right to maintenance, she filed an application for leave to sue in forma pauperis under the provisions of Order 33, Civil P.C. As required by Rule 2 of the Order, the application contained the particulars required in regard to the plaint in the suit showing the cause of action for the same. In those allegations she stated that she was the wife of the opposite party having been married to him in the Gandharva form which is valid according to the Mithila law by which the parties are governed. The petition for leave to sue as a pauper came up for disposal before Mr. B.K. Sarkar, the then Subordinate Judge, First Court, Patna, who by his order dated 30 January 1948, allowed the petition. Against this order, the opposite party moved this Court in civil Revision No. 60 of 1943, on the ground that the Subordinate Judge contravened Order 33, Rule 5 by refusing to hear his Counsel on the question whether the allegations in the plaint disclosed a cause of action. This civil revision was disposed of by the Court allowing the application, setting aside the order under revision and remanding the case to the Court below for disposal according to law. The direction given in the order was: It is to be distinctly understood that arguments will be confined in the Court below to the question whether the allegations in the plaint disclose a cause of action as provided in Order 33, Rule 5, Clause (d) and whether upon those allegations a valid marriage under the Mithila School of Hindu Law can be said to have been contracted. No other extraneous question shall be allowed to be raised or discussed.

(2.) Thereupon, the Subordinate Judge, Mr. Yunus after allowing the question referred to him to be fully heard passed the order under revision on 11 May 1944, rejecting the application; and, in doing so, he has come to the finding that the marriage in Gan-dharva form is not valid amongst Brahmans governed by the Mithila School of Hindu Law, and therefore the statements contained in the plaint do not show a valid cause of action as required by Order 33, Rule 5(d), Civil P.C. He also rejects the alternative prayer for maintenance as a further relief based on the contention that the applicant was entitled to get maintenance even in the event of the marriage connection alleged in the plaint being found illegitimate or illegal, holding such a relief inconsistent with the plaintiff's case.

(3.) As against this order of the learned Subordinate Judge, the applicant has come up in revision under Section 115, Civil P.C. The petitioner contends, inter alia, (1) that the learned Subordinate Judge should have confined himself to the question whether the allegations prima facie show a cause of action but had no jurisdiction to dispose of the complicated case finally on merits at this preliminary stage; (2) that he acted with material irregularity in approaching the question in the way he has done without addressing himself to the pith and substance of the allegations so far as they were relevant to the relief sought; and (3) that the Court's authority to reject an application for permission, to sue as a pauper and thus to deny her a trial is derived from the statutory provisions contained in Order 33, Rule 5, Civil P.C., and in this case he has assumed jurisdiction to reject the application on an erroneous view of law governing the question whether the applicant's allegations do not show any cause of action.