Punjab-Haryana High Court
Kulwant Singh vs Balwinder Kaur And Ors. on 1 April, 1999
Equivalent citations: I(2000)DMC245
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Where substantive proceedings for grant of maintenance are filed under the provisions of Sections 18 and 20 of Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act) there does the Court have power to grant maintenance pendente lite in absence of any specific provisions in that behalf, is the precise and pertinent question that falls for determination in the present revision petition.
2. Ms. Balwinder Kaur was married to Kulwant Singh on 6.12.1981 according to Sikh rites. From this marriage Vikramjit Singh and Sukhdeep Kaur, minors, were born. According to Balwinder Kaur, Kulwant Singh's attitude towards her as well as the minor children was unhappy and unhealthy. He used to drink and beat her on various occasions and even turned her out of matrimonial home. She made all possible attempts with the intervention of the friends and well wishers to settle the matrimonial home and sink down the differences but of no consequences. Rather the atmosphere in the matrimonial home kept on getting bad to worse and it was adversely affecting even the growth and welfare of the minor children. Per force she was to join her parental home alongwith two minor children whom she put in the school there. Son was studying in the 3rd standard while living with her mother. She has stated that she has no source of income to maintain herself and her children. Kulwant Singh has landed property and other source of income. Thus, she filed a petition under Section 18 read with Section 20 of the Act for grant of maintenance of Rs. 1,000/- per month to each of the plaintiff.
3. This petition was contested by the husband, who filed the written statement denying the allegations of drinking and beating and also stated that he never turned the wife and the children out of the matrimonial home. Pie averred that the wife had left the house at her own and in fact she has been demanding a sum of Rs. 50,000/- from him. According to him, the attempts to bring her back have failed. He stated that she is not entitled to any maintenance. The wife is stated to have 1/6th share in the landed property situated at Village Khamval and in support of this assertion he has placed a copy of the Jamabandi on record. In the entire land she has 6 Kanals and 2 Marlas of land.
4. Learned Civil Judge, Senior Division, Gurdaspur, vide order dated 20th February, 1998 dismissed the application of the wife while granting Rs. 300/- to each of the children. Aggrieved from the said order, the husband has filed the present revision petition.
5. Learned Counsel appearing for the petitioner while relying upon the judgment of this Court in the case of Sodagar Singh v. Smt. Harbhajan Kaur and Ors., (1977) 79 P.L.R. 506; and Makhan Singh v. Jagdish Kaur and Ors., (1991-2) 100 P.L.R. 324, vehemently contended that the impugned order suffers from an error of jurisdiction apparent on the face of the record. It is submitted that in absence of a specific provision to that effect the Court has no jurisdiction to grant interim or pendente lite maintenance.
6. On the other hand, learned Counsel appearing for the respondent has relied upon the cases of Kanwar Vishwajit Singh v. Smt. Nirmala Kanwar and Anr., (1991-2) 100 P.L.R. 277; and Sachchanand Wadhwani v. Smt. Nisha and Anr., 1991 (1) Hindu Law Reporter 181 = I (1992) DMC 605, contended to the contrary arguing that the impugned order does not call for any interference.
7. Admittedly the Hindu Adoptions and Maintenance Act, 1956 contains no provisions for grant of interim maintenance pendente lite to the spouse who has filed substantive proceedings under Sections 18 to 20 of the Act. In the present case, the Court is primarily concerned with the interpretation of Sections 18 and 20 of the Act because the petition has been filed by the wife for herself as well as on behalf of the children. The factum of marriage and birth of two children from the wedlock of the parties is not disputed. Once these two basic facts are admitted the controversy falls for determination at this interlocutory stage of the proceedings is only limited to the question of grant of interim maintenance pendente lite.
8. The Act was enacted with a basic object to amend and codify the law relating to adoption and maintenance amongst Hindus. The Act is nothing but legislative expression of the existing customs and obligations otherwise well accepted in Hindu Society. Section 4 of this Act gives overriding effect over the laws in force and insofar they are inconsistent with the provisions of the Act The provisions of the Act further clearly indicate the legislative intent to give the provisions over-riding effect even over the customs and usages which were in force immediately before coming into force of the Act. The Act, thus, has effected compositely the religious or customary obligation of Hindu family. The obligations of the father vis-a-vis children, and husband vis-a-vis his wife and vice-versa. Section 18 of the Act grants an absolute right of maintenance to the wife whether she was married before or after coming into force of this Act except when she offends the provisions of Sub-section (3) of Section 18 and is found to be unchanged or ceased to be a Hindu by conversion to other religion. The in-built emphasis in relation to concept of grant of maintenance is enshrined under the provisions of Section 18(2) of the Act. These provisions accepts the right of the wife to live separately from her husband without forfeiting the right to claim maintenance. To adopt an approach in judicial pronouncements which would have an adverse effect or result on the theme of the legislation normally should be avoided. This Act is a socio-welfare legislation and is intended to protect the women and children whose very existence is threatened because of non-availability of requisite means. Extent of their destitution compels them to take recourse to process of law founded on disreformative legislation. To deny an interim protection which the applicant may be intended to as a final relief in the petition would be an approach which would decimate the very legislative purpose behind this legislation. The legislative intent to protect the right of maintenance is unambiguously codified in the language of Sections 18 and 20 of the Act. Absence of a specific provision for grant of maintenance pendente lite would no way exclude the power of the Court to grant such a relief depending on the facts and circumstances of each case. It would amount to frustrate the very legislative intent behind these provisions if the interim maintenance is to be declined to the wife or the children in face of the provisions of Sections 18 and 20 of the Act. It will not only be unfortunate but even with respect illogical to hold that the grant of maintenance pendente lite is not permissible under the provisions of this Act. A child who approaches the Court for grant of maintenance under the provisions of this Act would not be even able to contest and take the suit instituted to its final culmination, if he or she was not granted interim maintenance, particularly when the application satisfies the basic ingredients spelt out by the Legislature for the grant of such relief finally.
9. It is a settled principle of law that a relief which cannot be granted while passing the final decree cannot be granted by way of interim relief in those proceedings, but converse thereof is not true. Depending on the facts and circumstances of a given case, the Court would grant interim order if such relief can be granted to the applicant upon final determination of the matter in issue. The provisions of Sections 18 and 20 have to be given a wider meaning so as to provide interim maintenance pendente lite by necessary implication. These provisions do not prohibit or exclude on any settled principle the jurisdiction of the Court to entertain and decide an application for interim or maintenance pendente lite. The Court would normally exercise its inherent powers to aid the ends of justice and to achieve the object of legislation. The exception being exercise of such inherent powers, it should not be in conflict with or destroy the intents behind the substantive provisions of the law or code, which governs and controls the matter under adjudication.
10. At this stage, I would like to refer to the judgment of this Court in the case of Kaila Devi and Ors. v. State of Haryana, C.M. No. 2726 CI of 1993 in R.F.A. No. 459 of 1988 decided on 17.12.1998 where following the principle enunciated by the Hon'ble Supreme Court of India in the case of Ram Chand and Sons Sugar Mills Private Limited v. Kanhayalal Bhargav, A.I.R. 1966 Supreme Court 1899, the Court held as under :
"At this stage, it will be appropriate to refer to the observations of the Hon'ble Supreme Court made in the case of Ram Chand and Sons Sugar Mills Private Limited (supra) :
'The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Civil Procedure Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court'.
'Montage picture that emerges from the principle enunciated by the highest Court of the land is that recourse to inherent powers in face of or in conflict with the specific provisions of the statute would not be permissible. Inherent powers cannot be used as an instrument to intrude the powers of the Court in regard to a procedure or a remedy, if specifically provided in other provisions of the code. No Code or law could be codified so as to provide for each and every situation, at every stage of the proceedings arising from the vacuum left in the enactment. Such situations are to be supplied by the Court by recourse to inherent powers to create a bridge over such situation for meeting the ends of justice or prevent abuse of process of law. To do justice is the primary duty of the Court but duty imposed should be discharged in consonance with the provisions of the Code and within four corners of well enunciated principle. Inherent powers being adjunct to the specifically provided powers of the Code as codified in the Code."
11. Somewhat similar situation exists under the provisions of Section 125 of the Code of Criminal Procedure. While Section 125 of the Cr. P.C. vests jurisdiction under the Court to grant maintenance to the spouse who approaches the Court under the provisions, there is no provisions for grant of interim or maintenance pendente lite even under the provisions of Criminal Procedure Code.
12. Hon'ble Supreme Court in the case of Savitri v. Govind Singh Rawat, 1986 A.I.R. 1986 Supreme Court 984, held that the learned Magistrate under Section 125 of the Code of Criminal Procedure had the jurisdiction to pass the order of interim maintenance. Their Lordships of the Hon'ble Supreme Court referred with approval the observations of the Apex Court in the case of Bhagwan Dutt v. Smt. Kamala Devi and Anr., 1975 A.I.R. Supreme Court 83, and held as under :
"In the absence, of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under Section 125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under Section 125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under Section 125, the applicant should be alive till the date of the final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ubi aliquid conceditur conceditur et id sine quo res ipsa esse non potest (where anything is conceded, there is conceded also anything without which the thing itself cannot exist (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P. 1797). Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary, intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have lab means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist."
13. A Division Bench of this Court in the case of Puran Singh and Ors. v. Mst. Har Kaur and Anr., 1970 Current Law Journal, 648, after discussing the law in relation thereto at some length expressed the following view :
"In all these cases the marital status was disputed. In fact, these decisions were considered by the Calcutta High Court Smt. Court Gupta Chaudhary v. Tarnai Gupta Chaudhuri, and this decision was affirmed in Letters Patent Appeal which decision is reported as Tarni Gupta Chowdhury v. Smt. Gauri Gupta Chowdhury, and it was explained therein that in a case, where there is no dispute as to the marital status or there is no bar to the wife receiving maintenance in law, an interim order granting maintenance in a suit for maintenance can be passed and it will not suffer from want of jurisdiction, for in that event it will not be deciding the substantive question. There is another decision of the Calcutta high Court taking the same view in Nemai Chand Jain v. Smt. Lila Jain, As already observed, if these decisions are read together there would appear to be no conflict between the views of the Calcutta High Court and those of the other High Courts. It also stands to reason that where the marital status is admitted, it is the duty of the husband to maintain the wife no matter even if she is not prepared to lie with him or perform the conjugal duties. It is another matter if she has become unchaste or has remarried. In that event there is no duty on the husband to maintain her."
14. A Full Bench of Orissa High Court in the case of Khadal Penthi v. Hulash Devi and Anr., A.I.R. 1998 Orissa, 137, held has under :
"In civil suit for maintenance (not under any provisions of the Hindu Marriage Act (1955), by wife mere denial of marital relationship by the defendant would not disentitle the plaintiff from being entitled to interim maintenance and the Court would have jurisdiction under Section 151, C.P.C., to grant interim maintenance in such suits."
Her right to be maintained as declared and recognised by Section 18 of the said Act is an enforceable right which can be enforced in a suit in the Civil Court. There is no express provision in any law or in the C.P.C. for grant of interim maintenance in a suit for maintenance. In such cases the Court would have inherent power to pass such order as may be necessary to meet the ends of justice."
15. Similar view was taken by the Rajasthan High Court in the case of Inder Mai v. Babu Lai, A.I.R. 1977 Rajasthan 160; and Delhi High Court in the cases Smt. Neelam Malhotra v. Rajinder Malhotra and Ors., A.I.R. 1994 Delhi 234=11(1993) DMC 547=51 (1993) DLT 588; and Ravinder Nath v. Nagesh Sharma @ Rinkoo (Minor) through Smt. Nirmal Sharma, mother and natural guardian, 1978 Hindu Law Reporter 666.
16. Obligation of the father or husband, as the case may be, to maintain his wife and children specially, who are unable to maintain themselves is a pious obligation founded on morality and law. The language of the provisions of the Act is wide enough to cover obligation to pay interim maintenance. Even otherwise, the stand of a father intending to deny maintenance to his own children on the ground of jurisdiction of the Court to pass such interim order can hardly be appreciated. In the case of Dr. R.K. Sood v. Usha Rani Sood, (1996-3) 114 P.L.R. 486, a petition filed under Sections 24 and 26 of the Hindu Marriage Act, 1955, this Court observed as under :
"Under the Hindu Law father not only has a moral but even a statutory obligation to maintain his infant children. The scope of his duty is to be regulated directly in relation to the money, status, that the father enjoys. The right of maintenance of a child from his father cannot be restricted to two meals a day but must be determined on the basis of the benefit, status and money that the child would have enjoyed as if he was living with the family, including his mother and father. Irrespective of the difference and grievances which each spouse may have against the other, the endeavour of the Court has to be to provide the best to the child in the facts and circumstances of each case and more so keeping the welfare of the child in mind for all such determinations. Liability to maintain one's children is clear from the text of this statute as well as the various decided cases in this regard. The statutory obligation is paramount to the wish of the father and he cannot be permitted to limit this claim of the child on flimsy and baseless grounds."
17. In view of the settled position of law, with respect I am unable to persuade myself to follow the view taken by Hon'ble Single Judges of this Court in Sodagar Singh and Makhan Singh's case (supra). In the light of the well enunciated principle by the Hon'ble Apex Court in Savitri's case (supra) and the Division Bench of this Court in Puran Singh's case (supra). I would prefer to follow the view expressed by another Hon'ble Single Judge of this Court in Kanwar Vishwajit Singh's case. Thus, I answer the question posed above in the affirmative that the Court of competent jurisdiction has the inherent powers to grant interim maintenance in a petition filed under Section 18 or 20 of the Act.
18. Coming back to the facts of the present case, as I have already noticed, the factum of marriage and the relationship of husband and wife and father of children is not in dispute. Mere fact that the wife has 6 Kanals 2 Marlas of land could hardly be of any consequence for denying the maintenance to the wife. But as the order has not been assailed by the wife, thus, I would decline to make any further comments in this regard. The father possessed of sufficient means and has an obligation statutory as well as moral to maintain his children. The grant of Rs. 300/- per month to each of the plaintiff Nos. 2 and 3 from the date of the order can no way be termed as excessive. In fact, the learned Counsel for the petitioner hardly challenged the quantum of maintenance fixed by the learned Trial Court.
19. Consequently, I have no hesitation in dismissing this revision, which I do hereby and dismissed the revision petition. However, there shall be no order as to costs.