Patna High Court
Baliram Ram vs Radhika Devi And Ors. on 13 April, 1979
Equivalent citations: AIR1980PAT67, AIR 1980 PATNA 67, 1979 BBCJ 510, 1979 BLJR 583, (1979) BLJ 546, (1980) MATLR 161
ORDER Hari Lal Agrawal, J.
1. This application has been filed by a defendant against whom his wife, opposite party No. 1, and two minor children, opposite party Nos. 2 and 3, have instituted a suit claiming maintenance and separate residence inter alia, on the allegation that the petitioner has been keeping a concubine.
2. The question that arises for decision of this court is as to whether the the court can pass an order for ad interim maintenance during the pendency of an action under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (to be referred to as 'the Act').
3. According to the provisions contained in Section 18 of the Act, a Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband during her lifetime and she is entitled to live separately from her husband without forfeiting her claim to maintenance on the various grounds enumerated in Sub-section (2) of Section 18, one of them being that the husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere. This is the ground on which the wife has founded, her claim for separate residence from the husband and has claimed the maintenance.
4. In this connection certain other relevant provisions of the Act may be noticed. According to Section 25 the amount of maintenance, whether fixed by a decree of court or by an agreement, may be altered even subsequently if there is a material change in the circumstances justifying for the alteration.
5. The impugned order granting ad interim compensation at the rate of Rs. 75/- per month was passed by the learned subordinate Judge on an application filed by the plaintiffs on 22-12-1976 under Section 24 of the Hindu Marriage Act claiming interim maintenance at the said rate. The petitioner challenged the maintainability of the said application and the claim, which was however overruled and an order against the petitioner was passed. Section 24 of the Hindu Marriage Act empowers the court to order payment of maintenance pendente lite every month at such sum as may deem to the court to be reasonable. "Having regard to the petitioner's own income and the income of the respondent" besides the expenses of the proceeding.
6. The trial court's order is in the form of a mere direction which does not discuss any argument.
In this court learned counsel for the petitioner strongly contended that Section 18 of the Act did not contemplate passing of any interim order of the nature as contemplated under Section 24 of the Hindu Marriage Act during the pendency of the proceeding and that reference to Section 24 of the Hindu Marriage Act was entirely misconceived.
In support of the argument reliance was placed on behalf of the petitioner on a Bench decision of the Andhra Pradesh High Court in the case of G. Appanna v. G. Seethamma (AIR 1972 Andh Pra 62), and a decision of the Supreme Court in the case of Manohar Lal Chopra v. Seth Hiralal (AIR 1962 SC 527).
The Supreme Court case is not under the Hindu Adoptions and Maintenance Act but deals with the general powers of the court to grant interim relief under Section 151 of the Code of Civil Procedure. It is, therefore, not necessary to discuss this decision in any detail. The Andhra Pradesh High Court in the above mentioned case has, however, clearly ruled that Section 18 of Hindu Adoptions and Maintenance Act does not authorise the award of interim maintenance pending decision of suit in which the very claim to maintenance is in contest. It is observed that the right of the wife to be maintained by the husband should not be confused with the power of the court to award interim maintenance pending an action for maintenance where such right is in dispute. The court has no power unless the statute expressly confers such a power on it. In this case the husband had challenged the very right of the wife to claim the maintenance and in this view of the matter it was observed by that court that the award of Interim maintenance pending decision of suit in which the right to maintenance is in contest cannot be called a procedural matter as an order awarding interim maintenance "can neither be said to be a step towards final judgment nor intended to render such judgment effective" and, therefore, such an order cannot be made under Section 351 of the Civil Procedure Code.
7. Similar questions fell for consideration before some other High Courts namely Madras, Calcutta and Karnataka, which have unanimously held that where the wife established a prima facie case the court was competent to make an order for grant of pendente lite maintenance.
8. Before however going to the authorities of the other High Courts, I may refer to another Bench decision of the Andhra Pradesh High Court itself in the case of Simhachalam v. Papam-ma, (AIR 1973 Andh Pra 31) where it was observed that even during the pendency of the proceedings instituted by the wife under Section 18 of the Act, she can claim interim maintenance under Section 24 of the Hindu Marriage Act. Although in the latter ease there is no mention of the earlier case, the decision is based upon a conspectus of the entire scheme of the Hindu Marriage Act and the Hindu Adoptions and Maintenance Act.
9. Now I shall deal with the two Calcutta cases. The first case is Tarini Gupta v. Sm. Gouri Gupta, (AIR 1968 Cal 567) and the second is Jyoti Prakash v. Chameli Banerjee (AIR 1975 Cal 260). In both the cases which are Bench decisions it was held that 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 which is asserted in the suit and that right is also available till the suit is determined and followed by a decree. The power of the court to grant maintenance is attracted with reference to provisions of the Act as also the general provisions in the Hindu Law. If, therefore, there is prima facie case and if the court, is of opinion that the plaintiffs is entitled to interim relief, the plaintiff may be given such relief. That would not amount to deciding the whole case as the relief asked for in the suit has yet to be determined and decided.
10. A learned single Judge of the Madras High Court in the case of Deivasigamani Udayar v. Rajarani Ammal, (AIR 1973 Mad 369) also took a similar view and held that where the relationship between the parties is admitted but the claim is contested by the husband, the court has jurisdiction to grant interim maintenance notwithstanding the absence of specific provision in the Act.
11. The learned Chief Justice of the Karnataka High Court in the case of K. Shankare Gowda v. Smt. S. Bhara-thi (AIR 1975 Kant 17) also took a similar view and held that if there is a general right under the statute to claim maintenance it follows that during the pendency of the suit also the wife has right to claim maintenance.
12. Having examined the authorities mentioned above and the facts of the case before me, I am of the view that no error of jurisdiction has been committed by the trial court in awarding pendente lite maintenance to the wife. The husband did not dispute that the opposite party No. 1 was his wife. Once this fact stands admitted, then under Sub-section (1) of Section 18 itself she became entitled to be maintained by her husband during her lifetime." Sub-section (2) however gives further right to a wife to live separately from her husband without forfeiting her claim to maintenance on any of the grounds enumerated therein. One of them being where the husband keeps a concubine, as alleged by the plaintiffs in the present case. The scheme of Section 18, therefore, confers a general right on the wife to claim maintenance. This right continues and is enforceable even during the pendency of the suit as she has got to be maintained by the husband even during the pendency of the suit and in that view of the matter the court not only can pass an order for interim maintenance but, in my view should pass such an order where the relationship of husband and wife between the parties is undisputed, as that by itself establishes a prima facie case for grant of interim maintenance.
13. From the discussions made above I come to the conclusion that this application has got no merit and it must fail. I would accordingly dismiss the same but make no order as to costs.