Kerala High Court
Sivankutty vs S. Komalakumari And Ors. on 29 February, 1988
Equivalent citations: AIR1989KER124, AIR 1989 KERALA 124, (1988) 2 CIVLJ 369, (1988) 1 KER LT 601, (1988) 24 REPORTS 364, ILR (1988) 2 KER 405, (1988) ILR(KER) 2 KER 405, (1988) 2 DMC 294, (1988) 2 HINDULR 575, (1988) MATLR 255, (1988) 2 CURCC 27
ORDER
1. A question of some practical importance in Hindu Adoptions and Maintenance Act, 1956 arises for consideration in this Civil Revision Petition. Certainly, this question is not res Integra, but judicial opinion is not uniform.
2. The revision petitioner is the husband. His wife and child filed a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, for short the Act. In the suit, the plaintiffs moved for interim relief of maintenance. The trial court allowed interim maintenance. It awarded Rs. 300/- per month for mother and child the revision-petitioner challenges this order.
3. The counsel for the revision-petitioner submitted before me two points. He raised a question of law. He said that the court when trying a suit under Section 18 of the Act has no jurisdiction to pass an order for interim maintenance. This he said on the ground that there is no specific provision for it provided in the Act He also submitted before me that some of the courts in India have taken the view that ho interim maintenances can be allowed in a suit under the Act. Of course, in fairness, he submitted before me that judicial opinion is not uniform. He told me that the quantum of maintenance determined by the court is not commensurate with the income of the petitioner.
4. I consider that the first question is of some importance. I shall begin the examination of the question by adverting to the statutory entitlement of a Hindu wife for maintenance. The law of maintenance of a Hindu wife, a pristine concept of Hindu law, is now made a statutory right. The wife's right to maintenance flows from the provision contained in the Hindu Adoptions and Maintenance Act -- Section 18. This section provides that a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime. Sub-section (2) of Section 18 of the Act gives the circumstances which will enable a wife to live separately from her husband without forfeiting her claim to maintenance, The circumstances are these: --
"(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying her living separately."
Sub-section (3) of Section 18 of the Act provides that a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
5. The first part of the section informs a time-honoured social obligation of the husband and the corresponding right of the wife. The right of the wife to claim maintenance is an incident of the status of matrimony. The section emphasises that when once the relationship of husband or wife is established, the wife gets the entitlement to maintenance. Though the claim to maintenance or the obligation of the husband to maintain the wife springs from the consortium of the wife with the husband, under certain circumstances enumerated in the section, where the wife is allowed by the statute to live separately from her husband, the wife will not lose her right to maintenance.
6. Section 18 of the Act deals with conferment of this right. How this right can be enforced by a Hindu wife is not specifically stated in the Act and it is now well settled that the right given under Section 18 of the Act can be enforced only by instituting a suit. Of course, the trial of the suit is governed by the provisions of the Civil P. C. The question is whether in the suit the court has got the power to pass orders directing payment of interim maintenance pending the final disposal of the suit. The matter has to be viewed through two different angles. Whether a court trying a suit can pass interim orders in the suit to meet the ends of justice invoking its power of inherent jurisdiction even if the right that is being adjudicates in the suit is a right conferred by a statute and that statute has not given any specific power to pass interim orders granting maintance pending the disposal of the suit. The order aspect of the matter is whether Section 18 of the Act itself implicits such a power.
7. Several decisions have been cited before me by counsel on both sides. I shall first refer to a Travancore Cochin High Court decision reported in Subramonia Iyer v. Padmavathi Ammal, 1953 Ker LT 586 : (AIR 1954 Trav Co 123) where Joseph Vithayathil J. said that in a contested suit for maintenance the court has no inherent jurisdiction to grant relief until that claim is determined on its merits. Further his Lordship said that an order awarding interim maintenance can be passed only under Order 12, Rule 6 of the Civil P. C. which empowers the court to make an order or give a judgment upon the admission or parties even before the final disposal of the suit. In the above case, the learned Judge modified the order of the court below by reducing the rate of interim maintenance to Rs. 15/- a month. This the Court did, since the defendant in his written statement contended that the plaintiff was not entitled to more than Rs. 15/-a month as maintenance. In this case, the court was not called upon to decide the question of jurisdiction of the court to pass orders for interim maintenance.
8. In Ramchandra v. Snehalata Dei, AIR 1977 Orissa 96 a Division Bench of the Orissa High Court took the view that the court has no inherent jurisdiction to grant relief until the claim is determined on its merits and that can be done only after the final hearing in the suit. According to this Division Bench, to grant relief in an interim application would be to grant relief which can properly be granted only by the ultimate determination in the suit and the decree following thereon. Anyhow, the court observed : "There may however be cases where taking the extraordinary aspects into consideration, the court may proceed to exercise inherent powers to grant interim relief. It is not appropriate to set limitations on court's inherent powers by indicating circumstances where it can be and where it cannot be exercised". Though the court observed that in trying the case under Section 18 of the Act, the court has no inherent jurisdiction, guardedly, it was a qualified to emphasise that 'ordinarily the court has no inherent jurisdiction'. I am not in a position to understand the true content of the Division Bench decision when it said that the court had no power to exercise inherent jurisdiction ordinarily.
9. The Orissa High Court has relied on a decision reported in Mahomad Abdul Ranman v. Tajunnisa Begum, AIR 1953 Mad 420. On a careful reading of the decision of the Madras High Court, I feel that the Madras High Court has not said in that decision that under no circumstances interim maintenance can be given in a suit under Section 18 of the Act. It did not say that in each and every case for interim maintenance in which the court passes an order, the same would be without jurisdiction and that under no circumstances Section 151 of the Code will be applicable. The ratio of the Madras decision has be confined to cases where there is serious and hot contest as regards the status of the applicant himself. The case reported in AIR 1953 Mad 420 has been explained in Muniammal v. Ranganatha Nayagar, AIR 1955 Mad 571. Ramaswami, J. said:
''The law relating to the award of interim maintenance in cases of this nature has been settled by the recent Bench decision of this Court in AIR 1953 Mad 420. Inasmuch as this decision does not appear to have been carefully understood always, it is worthwhile to examine the principles laid down in this decision. The ratio decided of this decision is that interim maintenance should not be granted in suits for maintenance or partition where the status and the right of the claimant is hotly contested, supported by a volume of prima facie evidence, documentary or circumstantial."
Further his Lordship said :
"This does not mean that whenever the contesting defendants merely deny the claim of the plaintiff and raise a so-called contest, interim reliefs can be denied which in fitting cases can be granted under Section 151. Civil P.C."
The very concept of inherent jurisdiction saved by the Civil Procedure Code implicits that as a court the prime devoir is to do justice, and, to meet the ends of justice, the court should be clothed with the power and jurisdiction which would enable the court to do justice between the parties. To put a limit to this jurisdiction by qualifying that 'ordinarily the court has no inherent jurisdiction' is against the very conceptual notion of the power of inherent jurisdiction.
10. Section 151, C.P.C. proceeds to say that 'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". The saving of inherent power of the court under Section 151, C.P.C. is intended for doing justice according to law and necessarily should take in its fold, as an imperative adjunct in the very functioning of the court all such powers as may be necessary to do fair justice to all concerned It is often said that the inherent power of the court is intrinsic and essential and its roots can be discerned in necessity --necessity to situations demanding fairness and justice -- and its width and amplitude are coextensive with necessity. When I say the width and amplitude are co-extensive with necessity, certainly I mean to say that the court has got wide discretion in the matter of applying the inherent power; but it has to be remembered a discretion when related to a court of justice means a well grounded judicial discretion, properly guided and guarded by mature considerations of all things which are relevant to the issue. A judge is certainly free; but he is still not wholly free. He has to exercise his discretion informed by the judicial necessities of the matter. It should not sound fanciful, undisciplined or self-opinioned. It should not be whimsical, but should be legal and regular.
11. In Narsingh Das v. Mangal Dubey, ILR (1882) 5 All 163 (FB) Mahmood J. said :
"Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed".
This is a classic observation -- a clean and clear extension of that great principle that all procedural norms adopted in the trial of suits in court are designed to subserve the purpose of rendering justice to the parties before it.
12. I feel that every court, in the absence of express provision in the Code, must, therefore, be deemed to possess, as inherent in its very constitution, all such powers as are necessary to render justice to the cause. Since the inherent power of the court is extensive, wide and indefinable, the confines of it should be delineated by the court trying the suit, of course informed of the principles laid down on the subject by the precedents of superior courts. Certainly, however wide the power may be, it will not permit an exercise if it is in an arbitrary and capricious manner.
13. In Tarini Gupta Chowdhury v. Gouri Gupta Chowdhury, AIR 1968 Cal 567 the High Court of Calcutta has taken the view that in appropriate cases the court trying & suit under Section 18 of the Hindu Adoptions and Maintenance Act can award interim maintenance. The court said : "The right of a wife to claim maintenance flows from Section 18. If there is a general right to claim maintenance, it follows that also during the pendency of the suit she has a right to claim maintenance. There is a right to claim maintenance because she is the wife. Secondly, the right to claim maintenance is being asserted in the suit and thirdly, there is a right to claim maintenance till the suit is determined and followed by decree". As I said earlier, the question can be viewed in two angles. The above quote focuses the principle that Section 18 of the Act itself implicits a power to pass interim maintenance pending the suit. The Calcutta High Court is giving emphasis not on the principle of inherent power but on an implied power that can be discerned in Section 18, for ordering an interim maintenance. A. N. Ray(J) (as he then was) said : "If there is a prima facie case and if the court is of opinion that the plaintiff is entitled to interim relief the plaintiff may be given such relief. That is not deciding the whole case. The relief asked for in the suit has yet to be determined and decided Interlocutory opinions do not bind the trial court."
14. The Rajasthan High Court in a decision reported in Indar Mal v. Babu Lal, AIR 1977 Raj 160 allowed an application for interim maintenance applying the provisions of Section 151, C.P.C. It said: "Grant of maintenance allowance is for preserving the existence of an individual who is not able to support himself. Though there is no express provision in the Act for grant of interim maintenance allowance there is no prohibition against granting such relief. The power to grant such interim allowance is implicit, ancillary and necessary corollary to the power to entertain a suit and pass final orders. Thus the court has inherent power to grant such interim allowance in suitable cases. The grant of interim relief does not in any way prejudice the substantial rights of the parties," The, Rajasthan High Court has relied on ILR (1882) 5 All 163 (FB), AIR 1973 Mad 369 and AIR 1968 Cal 567.
15. Now, I shall refer to a decision of the Andhra Pradesh High Court reported in Garivelli Appanna v. Gorivalli Seethamma, AIR 1972 Andh Pra 62 taking a different view. It has observed in that decision that "the inherem powers recognised by Section 151, C.P.C. cannot extend to matters other than procedural. The court cannot resort to the provisions of Section 151 to encroach upon substantive rights of parties or, in an interlocutory application, upon matters which await adjudication in the suit". A very constricted approach regarding the content of Section 151 was made in this decision by saying that no order under Section 151 is justified except in aid of the suit. I cannot agree with the above observation in this decision of the Andhra Pradesh High Court.
16. In Udayar v. Rajarani Animal, AIR 1973 Mad 369, considering the decisions reported in AIR 1972 Andh Pra 62 and AIR 1953 Mad 420, the Madras High Court observed: "In the present case, it is clear that the plaintiff and the defendant are husband and wife. That they were living together amicably until shortly before the suit is not in dispute, Whatever may be the ground urged by the plaintiff in support of her claim for maintenance, the status of the parties being admitted, the grant of maintenance ultimately is a matter of course. Bearing the general principles in view, namely the acts of court including its delays ought not to prejudice and cause hardship to any party, the power to make an interim order is implicit, ancillary and a necessary corollary of the power to entertain a suit and pass final decision therein. In that view, I consider that the order providing interim maintenance to a wife in a suit for maintenance is justified. The mere fact that Section 18 or other provisions of the Act do not make explicit provision for granting interim maintenance cannot negative the claim for interim maintenance. In dealing with the powers of the appellate tribunal under the Motor Vehicles Act, where a contention was raised that the appellate tribunal has no power to grant an interim relief as there is no specific provision in the enactment itself, Rajagopala Aiyangar, J. in Swaranambikai Motor Service v. Wahita Motor Service (1956) 2 Mad LJ (SN) 12 upheld the power of the Tribunal and held that even to cases before tribunals exercising quasi judicial powers the power to grant interim relief always exists. This is an a fortiori case where the question arises in a suit in a civil court. I therefore consider that the absence, of a specific provision in the Hindu Adoptions and Maintenance Act, 1956, is immaterial and that the civil court has jurisdiction to grant interim maintenance.
17. A sad reality stares at me and tells me that I must take into account that reality also in my judging process -- the reality of long delay in the final disposal of a litigation. Taking into account this aspect of the matter also and the principles 1 have already discussed, I have no hesitation to hold that the court has inherent power when it tries a suit under Section 18 of the Act to pass orders allowing interim maintenance in suitable cases even if it is difficult to implicit such a power in the statutory provision of the Act, namely, Section 18. Certainly, I do not subscribe to the view that Section 18 does not contain such a power. I may make it clear that the grant of an interim relief of maintenance should not in any way prejudice the adjudication of the substantial rights of the parties. In holding this view, I respectfully agree with the opinions of the High Courts of Calcutta, Rajasthan and Madras.
18. The only other question that has to be considered in this case is with regard to the quantum of maintenance. In this case, the court below has awarded Rs. 300A --Rs. 200/- for the mother and Rs. 100/- for the child A. N. Ray J. in AIR 1968 Cal 567 observed: "It will appear in Mulla's Hindu Law, 13th Edition at page 544 sequiter that a wife is entitled to be maintained by her husband whether he possesses property or not. When a man marries a girl, he undertakes the obligation of maintaining her. The maintenance of the wife by her husband is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession by the husband of any property ancestral or self-acquired. In other words, the general Hindu Law is that the wife has a right to be maintained by the husband, There is statutory recognition of this right in the 1956 Act The result is that there is a right to be maintained both under the Hindu Law and under the Hindu Adoptions and Maintenance Act, 1956. As I have indicated earlier if there is a right and if that right is invoked in a Suit, it follows that pending determination of the suit the court could make interlocutory orders in aid of a suit. Though in the above quote the learned Judge has said that the obligation is personal and it does not depend upon the income or possession of property of the husband. I do not think that a man who is incapable of earning any income should be compelled by a court to pay maintenance to the wife on the principle that it is a personal obligation on the part of the husband to maintain his wife. In a case where the husband happens to be an indigent person or becomes an indigent person, it is a misfortune that has to be shared by the wife also.
19. The evidence in the case shows that the husband has got only a monthly income of Rs. 623/-. The Court has awarded Rs. 300/-as interim maintenance to the wife and child. I feel, in the circumstances, the husband should not be compelled to pay an amount of Rs. 300/- as interim maintenance. I reduce the same to Rs. 250/- -- Rs. 150/- to the wife and Rs. 100/- to the child.
Subject to the above modification in the quantum of maintenance, the Civil Revision Petition is dismissed.