IN THE HIGH COURT OF RAJASTHAN

Case concerning Right to Receive Maintenance by Wife

‘A’, ‘K’, ‘B’ ………(Appellant)

VS

‘G’ .…….(Respondent)

SUBMITTED TO THE HIGH COURT OF RAJASTHAN ON THE

BEHALF OF THE RESPONDENT

SUBMITTED BY SUBMITTED TO
NAME:- PRATEEK SONI DR. CHETANA SHARMA
ROLL NO.:- 19BAL50045
CLASS:- B.A.LL.B.(5TH SEM)
S. NO.:- 37
 STATEMENT OF ISSUES

1) Whether ‘A’ is entitled to have the property sold to him by cousin of ‘B’ and
whether the charge for the purpose of bearing of maintenance, created
upon the property registered in the name of ‘A’ was valid?

2) What was the status of property received in gift by the cousin of ‘B’?

3) Whether ‘K’, a bonafide purchaser, is entitled to have the property sold to

him by ‘B’ and whether the charge created upon the property registered I
the name of the ‘K’, for the purpose of bearing burden of maintenance, was
valid?

4) What is the right of the ‘W’ in this matter, if any and whether the defence
of ‘B’ on the basis of his alleged marriage with ‘W’ worth granting relief to
him?
 ADVANCED ARGUMENTS

1) Whether ‘A’ is entitled to have the property sold to him by cousin of ‘B’
and whether the charge for the purpose of the bearing burden of
maintenance, created upon the property registered in the name of ‘A’ was
valid?

❖ As per the facts of the case the A is entitled to have the property because
the contract of the property between the cousin of ‘B’ and ‘A’ was valid or
was a proper sale of the land by the ‘B’’s cousin to ‘A’ and the charge for
the purpose of the bearing the burden of maintenance, is also valid
because the section 28 of the HINDU ADOPTION AND MAINTENANCE ACT,
1956 states that:-
“Where a dependant has a right to receive maintenance out of the
estate, and such estate or any part of the estate thereof is transferred, the
right to receive maintenance may be enforced against the transferee if the
transferee has notice of the right or if the transfer is gratuitous; but not
against the transferee for consideration and without notice of the right.”
This means that the transferee has to maintain the dependent out of the
property he received if he has the notice of the right or the transfer is
gratuitous.

❖ This idea flows from the section 39 of the Transfer of the Property Act,
1882 which says that:
• If the third person is entitled to be maintained from the profit made out
of the immovable property and such property is transferred, the
transferee will be liable for the payment of such maintenance if there
was a notice or if the transfer is gratuitous.
• The maintenance can only be recovered from the property transferred
by the person who was originally liable to pay maintenance and cannot
be recovered from the any other property that the transferee holds.

❖ As per the above mentioned points the charge for the purpose of the
bearing burden of maintenance, created upon the property registered in
the name of ‘A’ is valid.
2) What was the status of property received in gift by the cousin of ‘B’?

❖ The status of the property gifted by the ‘B’ to his cousin was a legal status.
It was not necessary to pay the consideration to ‘B’ for the gift by the
cousin.

❖ Because it is stated under the section 10 of the Indian contract act, 1872
for the valid contract all the essentials elements should be fulfilled and
consideration must be there or lawful. There are also some exceptions to
this rule are that in the contracts which is done in between blood relations,
love and affections, and time bared debt the consideration for the contract
is not necessary. These types of the contract is valid without the
consideration.

❖ So in short ‘B’‘s cousin have the right over the gifted property.
3) Whether ‘K’, a bonafide purchaser, is entitled to have the property sold to
him by ‘B’ and whether the charge created upon the property registered in
the name of the ‘K’, for the purpose of bearing burden of maintenance, was
valid?

❖ The property sold by the ‘B’ to the ‘K’ is legal because it was a proper
sale of deed on the part of the both parties which was ‘B’ and ‘K’. That’s
why ‘K’ is entitled to have the property.

❖ Later on charge created upon the property registered in the name of ‘K’
for the purpose of bearing the maintenance was valid due to the section
28 of the Hindu Adoption and Maintenance Act, 1956.

❖ The section 28 of the Hindu Adoption and Maintenance Act, 1956

states that:
• Where a dependent has a right to receive maintenance out of an estate,
and such estate or any part thereof is transferred. The right to receive
maintenance may be enforced against the transferee if the transferee
has notice of the right or if the transfer is gratuitous; but not against the
transferee for consideration and without notice of the right.
4) What is the right of the ‘W’ in this matter, if any and whether the defence
of ‘B’ on the basis of his alleged marriage with ‘W’ worth granting relief to
him?

❖ ‘W’ is the second wife of the ‘B’. Here she has no right regarding the
maintenance, as the marriage of her with ‘B’ was not valid because
according to the section 5 of the Hindu Marriage Act, 1955. Which
states that:
• Neither party has a spouse living at the time of the marriage;
• At the time of the marriage, neither party is incapable of giving a valid
consent to it in consequences of unsoundness of mind; or
• Though capable of giving a valid consent, has been suffering from
mental disorder of such a kind or to such an extent as to be unfit for
marriage and the procreation of children; or
• Has been subject to recurrent attacks of insanity.
• The bridegroom has completed the age of 21 years and the bride, the
age of 18 years at the time of the marriage;
• The parties are not within the degrees of prohibited relationship unless
the two;
• The parties are not sapindas of each other, unless the customs or usage
governing each of them permits of a marriage between the two.

So the marriage between ‘W’ and ‘B’ is invalid.

❖ But ‘W’ has a right to move ‘B’ into the court under section 494 of the
Indian penal code, 1860. This states that:
• Whoever, having a husband or wife living, marries in any case in which
such marriage is void by reason of its taking place during the life of such
husband or wife, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also
be liable to fine.
 PRAYER

Therefore in the light of the facts stated, issues raised, arguments advanced and
authorities cited. It is most humbly prayed and implored before the honorable
High Court of the Rajasthan that it may be graciously pleaded to adjudge and
declare that:
• Maintenance of the ‘G’ have to be given by the ‘A’ and ‘K’ who have the
right to the property.

Also pass any further order that it may deems fit in the favor of the Respondent in
the light of equity, justice and good conscience for this act of kindness, the
Prosecution shall be duty bound forever pray.

COUNCEL FOR THE RESPONDENT