S.B. Sinha, C.J.@mdashWhether an Interlocutory Application for grant of interim maintenance to a Hindu wife and her mentally retarded minor child towards provision of food, clothing as well as medical attendance and treatment and education to the child, filed in a suit brought under the provisions of Hindu Adoptions and Maintenance Act, 1956 (for short ''the Act'') for maintenance against the husband, can be entertained by a Court therefore in exercise of the inherent powers of the Court u/s 151 of the Code of Civil Procedure, despite the absence of a specific provision in this behalf in the Act, is the question involved in this Civil Revision Petition.
FACTS:
2. The 1st respondent herein was married to the petitioner on 22-10-1986 as per Hindu rites and customs. Out of the said wedlock, 2nd respondent was born. He is mentally retarded. The 1st respondent was allegedly being harassed by the petitioner. Her parents were unable to meet the demands of her husband and in-laws for more and more amount of dowry although a huge amount had been paid at the time of the marriage. Allegedly, even the 2nd respondent was not being provided with any medical treatment. It is alleged that the petitioner deserted the respondents. Therefore, they filed a suit in the Court of Judge, Family Court, City Civil Court for grant of maintenance at the rate of Rs.2,500/- per month under the provisions of the Act.
3. An application for grant of interim maintenance at the rate of Rs. 1500/- per month was filed which was marked as IA No.468 of 2000. The 2nd respondent was studying in the Special Education Centre for mentally handicapped Institute of Genetics, Hyderabad in Primary-II.
4. The learned Judge, Family Court, on a prima facie consideration of the material placed before him, by reason of the impugned order dated 24-6-2001, directed payment of Rs. 1000/- per month towards interim maintenance. Questioning the said order, this revision petition has been filed.
SUBMISSIONS:
5. The learned Counsel for the petitioner would urge that in a suit for maintenance under the provisions of the Act, no application for interim maintenance would be maintainable. The Judge, Family Court has no jurisdiction to pass an interim order of the nature u/s 151 of the Code of Civil Procedure. The learned Counsel in support of the said contention has placed strong reliance on
6. The learned Counsel appearing on behalf of the respondents, on the other hand, would submit that the petitioner as husband and father had a statutory obligation to maintain the respondents. The right of wife and a minor child to be maintained under the Act cannot be postponed till the determination of the issue on merits. The learned Counsel would urge that if the respondents have been able to show that they were not being maintained by the petitioner, they are entitled to be granted interim maintenance pendente lite. Therefore, it is one of such circumstances where the Court would be entitled to pass an order ex debito justitiae particularly when the relationship between the parties is admitted.
7. In the instant case, the petitioner does not dispute the solemnisation and consummation of the marriage with the 1st respondent and his statutory obligation to maintain his wife and son. His contention before the learned Judge, Family Court, as also before us is that an application for interim maintenance u/s 151 of the CPC is not maintainable.
STATUTORY PROVISIONS:
8. The Parliament enacted Hindu Adoption and Maintenance Act, 1956 codifying the law relating to adoption and maintenance among Hindus.
9. Section 18 of the Act, which provides for maintenance of wife, reads as follows:
(1) Subject to the provisions of this Court, 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.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance-
(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 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 if 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.
(3) 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 other religion.
10. Therefore, under Sub-section (1) of Section 18 a Hindu wife is entitled to be maintained by her husband during her lifetime and under Sub-section (2) she is also entitled to live separately from her husband without forfeiting her claim to maintenance in the circumstances enumerated under clauses (a) to (g) therein. u/s 20 of the Act, the children or the aged parents are entitled to be maintained. Under clause (b) of Section 3, ''maintenance'' has been defined in the following terms:
"Maintenance" includes, --
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.
11. The petitioner, therefore, was under an obligation to make provision to his wife and minor child for food, clothing, residence, education as well as medical attendance and treatment.
12. u/s 24 of the Hindu Marriage Act, where proceedings are pending a Hindu wife is entitled to seek for maintenance pendente lite as also the expenses of proceedings. Admittedly, at the time the respondents filed the suit before the Family Court, Hyderabad no proceeding was pending before the Court under the provisions of the Hindu Marriage Act, 1955. However, it appears that the petitioner on 18-4-2001 filed a petition being OP No. 21 of 2001 on the file of the Senior Civil Judge, Avanigadda u/s 9 of the Hindu Marriage Act, for restitution of the conjugal rights.
FINDINGS:
13. The jurisdiction of a Court to pass an interim order u/s 151 of the CPC is no longer res integra. In
14. In G. Appanna''s case, Chinnappa Reddy, J (as his Lordship then was) speaking for a Division Bench of this Court held that Section 18 of the Act does not authorise the award of interim maintenance pending decision of suit in which the very claim to maintenance is in contest. The teamed Judge relied upon a decision of the Madras High Court in
To grant any relief in an interim application would be to grant the relief which can properly be granted only by the ultimate determination in the suit and the decree following thereon. The Civil PC. confers certain powers on the Court to grant relief in interim proceedings such as for example, power to issue injunctions, attachments before judgments or appointment of receivers. Where such relief is claimed the Code prescribes the conditions on which such relief could be granted. But apart from such powers, there is no inherent jurisdiction in Courts to grant interim relief could be granted. But apart from such powers, there is no inherent jurisdiction in Courts to grant interim relief which properly ought to be granted only by the decree after determination of the points in controversy. We are accordingly of opinion that the order of the learned Judge granting interim relief in the suit in which the claim of the plaintiff is hotly contested, was without jurisdiction,
15. However, in the said case, the defendant therein denied that the plaintiff was married to him.
16. The decision in Abdul Rahman''s case was distinguished by Dana, J., of the Calcutta High Court in
In considerable cases where on the materials before it, the Court finds no difficulty in assessing the reasonable maintenance and where the marriage is not hotly contested the Court should make an order for interim maintenance in the interests of justice by invoking the powers u/s 151 of the Code of Civil Procedure.
17. The said view of the learned single Judge was affirmed on appeal by a Division Bench of the Calcutta High Court in
The Court has power to make interlocutory orders in aid of a suit. Denial of status does not lake away the jurisdiction of the Court. Interim maintenance is not an act of exercise of inherent jurisdiction. Interim maintenance is granted as an interlocutory relief in the suit.
18. Disagreeing with the decisions of the Calcutta High Court in Gupta''s case and concurring with the decision in Abdul Rahman''s case, the Division Bench of this Court in Appanna''s case held that there was no express provision u/s 18 of the Act for grant of interim maintenance pending determination of the issue on merits though such a power has expressly been conferred on the Court u/s 24 of the Hindu Marriage Act for grant of maintenance pendente lite. His Lordship Chinnappa Reddy, J., held that the provisions of Section 151 cannot be resorted to encroach upon the substantive rights and matter has to await adjudication in the suit. It was held that the Code being intended to regulate the procedure of Courts, the inherent power recognised u/s 151 cannot extend to matters other than procedural. It was opined:
The Code itself is intended to regulate the procedure of Courts. Section 151, therefore, is concerned with the procedure to be followed by the Court in deciding the cause before it. The inherent powers recognised by Section 151 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. No order u/s 151 CPC can be made except ''in aid of the suit''. Such an order may be 3 step towards obtaining a final adjudication in the suit or it may be with a view to ''rendering the judgment effective, if obtained''.
It was further held:
Section 18 merely clothes a Hindu wife with the right to be maintained by her husband. It may be more correct to say that Section 18 recognises the right of a Hindu wife to be maintained by her husband since she possessed such a right even under the Hindu Law. Where the husband fails to discharge the obligation of maintaining his wife, the wife can enforce her right to maintenance by instituting an appropriate action. To such an action the defendant may have several defences. He may deny the marriage itself. He may deny that the marriage is subsisting. He may plead that the wife is unchaste or has ceased to be a Hindu. He may plead that the wife is living separately from him without any just cause. All these questions, if pleaded, will have to be decided in the suit. Maintenance can be awarded by the Court only after adjudication of the questions involved in the suit. If the wife succeeds she will be awarded maintenance from date of suit or even earlier, as the case may be. There is no question of the husband taking advantage of the filing of the suit and stopping maintaining the wife, as Datta J., seems to have thought, since if the wife establishes her claim she will be entitled to recover arrears of maintenance also.
In our view Section 18 does not authorise the award of interim maintenance pending decision on the claim to maintenance in contest in the suit. 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 statute expressly confers such a power on it. For example a power to award maintenance pendents lite is expressly conferred by Section 24 of the Hindu Marriage Act. The Hindu Adoptions and Maintenance Act does not contain a similar provision.
19. This Court, therefore, in Appanna''s case held that there is no statutory'' authority to award interim maintenance pending an action for maintenance where the right to maintenance is in dispute.
20. The decision of the Apex Court in Manoharlal (supra) unfortunately was not brought to the notice of the Division Bench of this Court Appanna''s case. In Manoharlal''s case the Apex Court was considering the provisions of Order 39, Sections 94 and 151 of CPC. Noticing difference of opinion between the various High Courts on the question of exercise of inherent jurisdiction of the Court to grant temporary injunctions not covered by the provisions of Order 39 CPC agreeing with the views expressed by the Allahabad High Court and the Calcutta High Court in
We are of the view that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order XXXIX CPC. There is no expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them........,.....If the provisions of Section 94 were not therein the Code, the Court could still issue temporary injunctions but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court''s exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.
21. Referring to Section 151 of the Code, the Apex Court noticed the following observations of the Apex Court in
The inherent powers of the Court are in addition to the powers specifically conferred, on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers ''is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature.
The Apex Court further noticed:
.....The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure.
22. Noticing so, the Apex Court in Manoharlul''s case held:
The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.
Further when the Code itself recognises the existence of the inherent power of the Court there is no question of implying any powers outside the limits of the Code.
23. Though the Apex Court in the above decision has considered the issue with reference to Section 94 CPC, we are of the view that the above observations are equally applicable to the case of hand. Under the Hindu Adoptions and Maintenance Act, 1956 also there is no express provision, which expressly prohibited the grant of interim maintenance to the wife and minor children pending final adjudication of the issue in the suit. Therefore, in the absence of a specific provision in the Act for grant of interim maintenance, we are of the view that the Court is not precluded from exercising its inherent jurisdiction in the facts and circumstances of a case and where the interests of justice warrant to grant interim maintenance to the wife and minor children. The Apex Court in Padam Sen''s case (supra) clearly held that the exercise of powers u/s 151 of the Code are not powers over the substantive rights of the parties. At this stage, it may be relevant to notice the observations of the Apex Court in Manoharlal''s case that the power u/s 151 is not a power conferred upon the Court, but it is a power inherent in the Court itself by virtue of its duty to do justice between the parties. In this view of the matter, with due respect, we are unable to subscribe to the view expressed by the Division Bench of this Court in Appanna''s case. If the reasons of the Division Bench of this Court in Appanna''s case are accepted, hardly, there would be a case which is hotly contested where such an application would be maintainable.
24. Though there are limitations on the powers of the Court, it cannot abandon its inherent powers. The inherent power has its roots in necessity and its breadth is coextensive with the necessity. (See
25. In
26. In Ch. Rama Rao v. Stale of A.P. 2001 (4) ALD 554, a Division Bench of this Court held that the High Court or even the Tribunal has inherent jurisdiction to pass an interim order although there was no provision therefor.
27. There cannot be any dispute that the Court while exercising its inherent power, should not overlook the statutory provisions and such power cannot be invoked to nullify or stultify a statutory provision. Here the question of nullifying or stultifying the statutory provisions cannot and does not arise. Sections 18 and 20 of the Act recognised the absolute right of a wife and minor child to seek for maintenance. Both the provisions have not expressly prohibited to claim interim maintenance pendente lite. Therefore, where circumstances warrant and on prima facie satisfaction of the merits of the case, the Court is not prohibited from exercising its inherent power of jurisdiction to grant maintenance to the deserted wife and children pendente lite in the interest of justice.
28. Further, in our view, independent of the inherent power of the Court u/s 151 CPC the wife and children are entitled for grant of interim maintenance under the scheme and provisions of the Act itself. The expression ''maintenance'' in subsection (b)(i) of Section 3 of the Act is an inclusive one providing for provision for food, clothing, residence, education and medical attendance and treatment. There may be number of cases where a child cannot be sent to school for want of money. There may also be instances where the deserted wife or the son who are suffering from prolonged illness may be required immediate medical assistance and treatment and they may not be able to meet the expenses. The mother may not be able to provide medical assistance to herself or to her ailing child. Therefore, an urgent need may arise for medical assistance or treatment either for the wife or the child, which may not await decision in the suit, which will take several years to conclude. In absence of medical assistance and treatment, the wife or the child may not survive to obtain and or reap the fruits of the decree that may be granted by the Court ultimately. In our view, that was not the intention of the Legislature. The very fact that the inclusive definition contained in subsection (b)(i) of Section 3 of the Act confer an absolute right of maintenance, the same is required to be made effective by Court if necessary by passing an interim order. In view of the scheme of the Act conferring an absolute right on the wife and the minor children to seek for maintenance, a liberal construction has to be given to the provisions of the Act to construe that such ancillary or incidental power has been conferred on the Court by implication to grant interim maintenance to the wife and child in cases where it is justified on prima facie satisfaction of the merits of the case. The provisions of Sections 18 and 20 cannot be interpreted in such a manner so as to defeat justice to the deserted wife and her dependant child.
29. Even otherwise also, food, clothing, residence are essential requirements for human survival. Providing such essential requirements to the wife and children being the statutory and moral duty of a husband, the sane cannot be denied or postponed. In the present context of globalisation, education is also an important requirement and the children are to be necessarily provided with education. Unless some interim maintenance is provided, it may not be possible for the mother to educate her children. It may be possible that by the time the controversy is ultimately decided after contest, the children may not be able to get proper education for want of money and their career would be at stake. Therefore, grant of interim maintenance towards education has relevance and absolute necessity. If the decision of this Court in Appanna''s case that interim maintenance cannot be granted till the final adjudication of the issue on merits is accepted, it would result in untold hardship and misery to the mother and the minor children. The provisions of the Act being beneficial legislation in favour of the wife and children, even if there is no provision for grant of interim maintenance, the same should be read down so as to give effect to the intent and object of the Act and to do human and social justice. Clothing, food, education, medical assistance being essential things for survival cannot be denied to the wife and children neglected by a husband till the determination of the suit particularly in a case where the marital status is admitted by him. We are of the view that the Court on a prima facie consideration of the matter would be a liberty to grant interim maintenance to do justice where the cases justify grant of maintenance pendente lite.
30. Where the law is not clear ''just construction'' has to be invoked. In
It is only where a provision is ambiguous that a construction that leads to a result that more just can be adopted.
31. Our view is also fortified by a recent decision of the Bombay High Court in Atul Sashikant Mude v. Niranjana And Mude AIR 1998 Bom. 234, wherein the Bombay High Court held that independent of the inherent power of the Court u/s 151 CPC, under the very scheme of the Act itself, the Court has power to pass ad interim orders. Dissenting from the opinion of the Division Bench of this Court in Appanna ''s case, it was held:
.........With respect, we find it difficult to accept this reasoning. In our opinion, the question whether the Court has jurisdiction to pass interim order can never be dependent on the possibility of the defences to the suit. What is more important is that the Act viz., Hindu Adoptions and Maintenance Act, 1956. avowedly is for codifying the law relating to maintenance amongst Hindus, It is extremely relevant to notice that the inclusive definition of'' "maintenance" states that "maintenance" includes (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; and (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. In our opinion these aspects of maintenance clearly contemplate grant of the same when the same is needed. That the wife, if she succeeds, will be entitled to arrears is no consolation. For example, there may be urgent need of medical attendance and treatment which surely cannot await the decision of the suit after several years.
It was further observed:
.......not passing such an order, in our opinion, is not only more disastrous but may defeat the entire object and purpose of the Act. Maintenance, as stated, is the support to life having provision for food, clothing, residence, education, medical attendance and treatment and shelter which, when denied, are required immediately to be granted and cannot await the duration of a long trial. It is relevant to notice in that behalf, that the provisions of Section 18(1) give absolute entitlement to a Hindu wife to be maintained by her husband during her life lime. If this has to be ensured, urgent ad-interim and interim orders as required under the circumstances of the case will have to be passed.
32. A right to pass an interim order need not always be exclusively conferred by the provisions of a statute. Such a power as noticed herein before can be exercised ex debito justitiae. Even under Article 226 of the Constitution, there is no provision to grant interim relief. Still interim orders can be passed by the High Court on oral application.
33. We may also notice that Section 125 of the Code of Criminal Procedure also does not provide for grant of interim maintenance. Despite the same, the Apex Court in
.................. Whenever anything is required to be done by law and it is found impossible lo 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 no 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. It is quite possible that such contingency may arise in a few cases but . the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties.....
34. Such an incidental power is also conferred upon the Courts.
35. In Ramachandra v. Snehalata Dei (supra) a Division Bench of the Orissa High Court dealing with the aspect of grant of interim maintenance under the provisions of the Act followed the decision of this Court in Appanna''s case (supra). In the case before the Orissa High Court, marital relationship had been terminated. The issues raised in the matter were barred by the principles of res judicata. The Court although agreed with the decision of Madras High Court in Abdul Rahman''s case and dissented from the decision of the Calcutta High Court in Tarani Gupta ''s case (supra) as laying down ordinary rule, however, observed:
.........We agree that there may 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 indicting circumstances where it can be and where it cannot be exercised.
36. The said decision, therefore, also recognised the power of the Court to grant interim maintenance u/s 151 CPC. In Khadal Penthi v. Hulash Dei AIR 1987 Ori 137, a Full Bench of the Orissa High Court noticed its earlier decision In Ramachandra v. Snehalata (supra) and a subsequent decision of the same High Court in
..........this Court has been consistently taking the view that in a suit filed by the wife for recovery of maintenance from her husband, the Court has power u/s 151 of the Civil P.C. to grant interim maintenance during pendency of the suit, but exercise of that power will depend upon facts and circumstances in each case. Some of the relevant matters to be considered are whether there are prima facie materials to establish marital relationship and whether the wife is able to make out a case for grant of interim maintenance. In taking this view, this Court has not accepted the extreme views taken by some other High Courts, on being that the Court has no power at all u/s 151 to grant interim maintenance in a suit for recovery of maintenance and the other that the wife has the right to get interim maintenance notwithstanding the denial of marital relationship between her and the defendant.
37. Referring to Section 24 of the Hindu Marriage Act, it was held:
Evidently this is not a suit under any of the provisions of the Hindu Marriage Act, 1955. This being a suit of civil nature, the civil Court has jurisdiction to entertain and try the suit u/s 9 of the Civil PC. The prayer for interim maintenance cannot be one u/s 24 of the Hindu Marriage Act which provides for grant of pendente life maintenance and expenses of the proceeding. No suit is contemplated under Section. 18 of the Hindu Adoptions and Maintenance Act as said section merely declares that a Hindu wife whether married before or after the commencement of the said Act shall be entitled to be maintained by her husband during her lifetime. In other words, the said section merely recognises the right of a Hindu wife to be maintained by her husband, which right was also recognised even under the texts of Hindu Law before enactment of the aforesaid Act. 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.........
38. We are in respectful agreement with the aforesaid view of the Orissa High Court. We are of the view that construing the enforceable right u/s 18 of the Act, having regard to the object of the Act, it must be held that the Court has inherent power to grant interim maintenance. The Full Bench noticed the decision of the Apex Court in
39. Incidentally, we may note that Motilal B. Naik, J., in
40. The decision of a Division Bench of this Court in Subrahmanyam v. A. Rama Devi (supra) wherein one of us - R.M. Bapai, J., was a member was rendered in different fact situation. It was observed that a petition for grant of interim maintenance u/s 17 of the Family Courts Act, 1984 is not maintainable and the proper provision for claiming interim maintenance is u/s 18 of the Hindu Adoptions and Maintenance Act.
41. The Division Bench was also of the view that there was no provision in law enabling the wife to claim maintenance u/s 151 CPC. However, we may observe that none of the authorities on which we have placed reliance above were brought to the notice of the Division Bench. Therefore, we are unable to subscribe to the view taken by the Division Bench. It may further be noticed that even after arriving at the aforementioned conclusion the Division Bench declined to interfere in the award of interim maintenance granted by the Family Court on the ground that it was a maintenance matter.
42. In Shriram Bearings Limited v. ESI Corporation 1977 Lab. IC 1482, a Division Bench of Patna High Court held that the Court constituted u/s 75 of the Employees'' State Insurance Act, has power to issue appropriate interim relief. The said decision has been noticed by a Division Bench of this Court recently in Ashok Leyland Limited, Ductron, Castings Limited v. Dy. Tahsildar/Special Revenue Inspector (ESI) 200l (4) ALD 96.
43. In Income Tax Officer v. M.K. Mohammed Kunhi AIR 1967 SC 430, the Apex Court has held that the Income Tax Appellate Tribunal in exercise of its appellate jurisdiction has incidental or ancillary power to stay the demand. Section 10(1) of the Industrial Disputes Act also empowers the authority to grant such ancillary or incidental power where the circumstances warrant for grant of interim relief. (See
CONCLUSIONS:
44. For the reasons aforementioned, we are of the opinion that the decision of this Court in
45. We are also of the view that independent of the inherent power of the Court u/s 151 CPC., even under the provisions of the Act itself, by necessary implication, power has been conferred in the Court to grant interim maintenance to the wife and minor children where circumstances so warrant and justify to do justice on a prima facie satisfaction of the case on merits. In such cases, the Court cannot decline to grant interim maintenance pendents lite till the final adjudication of the controversy on merits.
46. Though it is alleged in the petition that the 1st respondent is working in a Pharmaceutical Company at Hyderabad and earning Rs. 10,000/-, no material has been produced to that effect. However, in our view, that is a matter, which has to be taken into consideration at the time of final adjudication of the controversy on merits and also having regard to the fact that the 2nd respondent being a mentally retarded person the petitioner has also a duty to look after the welfare of his son. Having regard to the quantum of maintenance granted by the learned Judge, Family Court, which, in our opinion, is absolutely necessary for the maintenance of the 1st respondent and her mentally retarded child, it is not a fit case where this Court in exercise of its revisional jurisdiction u/s 115 of the CPC can interfere with the same.
47. The Civil Revision Petition is accordingly dismissed. No order as to costs.
CRP.No.4495 of 2001
N.V. Ramana, J.
48. The reference came up for consideration before this Court for deciding the question as to whether the ratio laid down in
The points that arise for consideration are:
(1) Whether the provisions of the Hindu Adoption and Maintenance Act are applicable in an interlocutory application claiming interim maintenance?
(2) Whether interim maintenance can be granted in exercise of the inherent powers conferred by Section 151 of the Code of Civil Procedure?
(3) Whether Order XII, Rule 6 of the CPC is applicable in the event an application is filed u/s 151 of the Code of Civil Procedure?
49. I have had the benefit of perusing the elaborate and erudite judgment proposed by My Lord, the Chief Justice, on behalf of the Full Bench. Since the learned Chief Justice has succinctly dealt with the factual land legal aspects of the matter in extenso, I do not want to dilate on those aspects once again. While I am in respectful agreement with the conclusions reached and the reasons recorded by the learned Chief Justice, I would like to add few words of my own.
50. Before dealing with the issues involved in the case under reference, it is just and necessary to notice the definition of the word "maintenance", as defined u/s 3(b(i) of the Hindu Adoptions and Maintenance Act, 1956, which reads:
(b) "maintenance" includes,---
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment."
51. The interpretation of the provision and its application with reference to maintenance is recognition of the right of subsistence, support, assistance and decent living, which one is entitled to and the other is bound by law to proide the same. The Hindu Law, whether codified or uncodified, recognizes the right of maintenance as a substantive right. The right to claim maintenance is dealt with in Chapter III of the Hindu Marriage Act. Section 24 recognizes the right to claim maintenance pendente life and expenses of the proceedings. Similarly, u/s 125 of the Code of Criminal Procedure, the Court on an application can grant interim maintenance,
52. In
53. As per the provisions of the Hindu Adoptions and Maintenance Act, 1956, a wife is entitled for maintenance irrespective of the fact her husband possesses any property or not. It indicates that when a man marries a woman, it is an obligation to maintain his wife. In this context it is apt to quote the following words of "Manu":-"the aged parents, a virtuous wife, and an infant child must be maintained even by doing a hundred misdeeds,"
54. The object and purpose of judicial function is to preserve and protect the subject-matter and to see that relief sought is not allowed to be frustrated. The Courts are entitled to interpret the Hindu Law so as not to affect the paramount questions of public policy and without departing from the well-settled principles of jurisprudence. In my opinion, while interpreting the personal law, it is not safe to proceed with the case basing on mere technicalities or on the basis of dictionary meaning assigned to a particular word, While dealing with the right of wife to claim interim maintenance, the Court must keep in mind not only the legal obligations, but also the moral and social obligations of husband. In interpreting law, the Courts must mould law to meet the situations, which are not anticipated by the Legislature in the fight of the consciousness of the society.
55. It may be mentioned that, the doctrine of ancillary and incidental powers is well recognised in Indian Law. The said doctrine postulates that, every body, be it a Court or a Tribunal vested with judicial or quasi-judicial powers, is endowed with ancillary and incidental powers as are necessary to discharge the functions effectively for the purpose of doing complete justice between the parties.
56. 1 may refer to the judgments of the Supreme Court in Grindlays Bank Limited v. Central Industrial Tribunal 1980 SCC Supp (1) 420,
"It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal to do so. But, it is a well known rule of statutory construction that a Tribunal Of body should be considered to be endowed with such ancillary and incidental powers as are necessary to discharge Us functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental and ancillary powers unless there is any indication in a statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary.
57. The dicta laid down in Grindalays Bank case (supra) was subsequently followed by the Supreme Court in Satnam Verma case (supra) and Paras Laminates case (supra). In Paras Laminates case (supra) the question whether a Tribunal constituted under a statute has powers to regulate its own procedure apart from the explicit provisions came up for consideration before the Supreme Court in the context of the powers exercised by a Bench of Customs, Excise and Gold (Control) Appellate Tribunal. After referring to the provisions of Section 129 of the Customs Act, 1962, the Supreme Court held as follows:
"There is no doubt that the Tribunal functions as a Court within the limits of its jurisdiction. It has all !he powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers, which are necessary to make fully effective the express grant of Statutory powers. Certain powers are recognized as incidental and ancillary powers, which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power, which is expressly granted in the assigned field of jurisdiction, is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant, of course, limited by the express grant and, therefore, it can only be such powers as ore truly incidental and ancillary for doing all such act or employing all such means as are reasonably necessarily to make the grant effective. As stated in Maxwell on Interpretation of Statutes (11th Edn.) where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution."
58. A Hindu wife is entitled to live separately from her husband without forfeiting her claim to maintenance, subject to fulfillment of conditions laid down under Sub-sections (2) and (3) of Section 18 of the Hindu Marriage Act, 1955. Section 4 of the Act gives overriding effect to the provisions of the Act. Section 4 of the Hindu Marriage Act, 1955, reads as follows:
Overriding effect of Act :--Save as otherwise expressly provided in this Act-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as a part of that law in force immediately before the commencement of this Act shall cease to effect with respect to any matter for which provision is made in this Act.
(b) any other law in force immediately before the commencement of the Act shall cease to have effect insofar as it is inconsistent with any of the provision contained in this Act."
59. A bare reading of the above provision clearly indicates that the Hindu Law is not static or staid, but is empiric and progressive. The Act provides right to claim maintenance, which includes right to seek interim relief with reference to the provisions of the Act and general provisions of the Hindu Law with the aid and assistance of the inherent power conferred on the Court by Section 151 of the Code of Civil Procedure. In my opinion, where new combination of circumstances arose, it is incumbent on the Court to apply rule of law, which could be derived from the general principles. The interpretation of law is not merely for the determination of particular case but also in the interest of Law as a science. As such, interpretation of law must be in accordance with Justice, Equity and Good Conscience, and, more so, in furtherance of Justice. If the Court prima facie comes to conclusion that the plaintiff/petitioner is entitled to interim maintenance, it can award interim maintenance in the interest of justice, without being fettered by orthodixical prejudices, by showing liberal readiness to move with times.
60. The next point for consideration under reference is whether the interim maintenance can be granted in exercise of inherent power of Court u/s 151 of the CPC and whether Order XII, Rule 6 CPC is applicable in the event an application u/s 151 of the CPC is made?
61. The parties who suffer injury approach the Court for justice and for redressal of their grievance. A duty is cast upon the Court in exercise its judicial power to examine and determine the law on such grievance complained of, ascertain its extent, and apply the remedy. The Courts are entertaining interlocutory applications in the proceedings pending before it and making interlocutory orders as may appear to be just and convenient. The ultimate intention is, the relief sought should not be allowed to be frustrated. In Saviiri''s case (supra), it was observed by the learned Judges of the Supreme Court, as under:
''"In order to enjoy the fruits of the proceedings u/s 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."
62. The inherent powers u/s 151 of the CPC and the powers conferred under the other provisions of CPC i.e., u/s 94(e) are intended to do complete justice between the parties. A conjoint reading of Sections 94(e) and 151 of the CPC clearly discloses that they empower the Courts to pass appropriate interim orders as may appear to the Courts just and convenient to prevent the justice being defeated. ''The object of the provisions is to preserve the rights of the parties at the same place till their cause is adjudicated. As a matter of principle if it is held that no interim maintenance can be awarded in maintenances proceedings, it causes hardship to the parties and in some cases there is the possibility that the main relief may also become infructuous, if the party is not able to maintain herself pending proceedings. The law governing grant of interlocutors order under the CPC is now well settled. In
(a) Whether irreparable or serious mischief will ensure to the plaintiff;
(b) Whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) The Court will also consider the time at which the plaintiff first had notice of the act complained so that making an improper order against a party in his absence is prevented;
(d) The Court will consider whether the plaintiff had acquiesced for some time and in such circumstances it will not grant exparte injunction;
(e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application;
(f) Even if granted, the ex parte injunction should be for a limited period of time;
(g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court.
63. There are three factors either to grant or refuse to grant interim orders i.e., prima facie case, balance of convenience and irreparable injury. Order 12, Rule 6 of the CPC contemplates decree on admission. In maintenance cases, the grant of interim order depends upon the prima facie case and any other relevant considerations cannot be equated with the relief to be granted on admission under Order 12, Rule 6 of the Code of Civil Procedure. There is no provision in the CPC either inconsistent with or prohibiting the exercise of inherent powers in granting interim relief. The Court by expressly or necessary implications is empowered to grant interim relief by exercising powers conferred under Sections 94(e) and 151 of the Code of Civil Procedure.
64. The Supreme Court in Ramchand and Sons Sugar Mills v. Kanailal Bhargava AIR 1966 SC 1897, had stated that inherent powers of the Court are in addition to and supplementary to the powers expressly conferred under the Code of Civil Procedure.
65. In
66. A Division Bench of this Court in J. Sudhersana Devi v. J. Vasudeva Reddy1990 (1) LS 128, held that interim maintenance can be granted in exercise of the inherent powers u/s 151 of the Code of Civil Procedure.
67. In C.V. Satyaitarayana and others v. V. Venkata Ratnam and others 1987(2) APLJ 236, a Division Bench of this Court held that in view of the decision in Savitri''s case (supra), the decision rendered in Garivelli Appanna ''s case (supra) is no longer good law.
68 A Full Bench of the Orissa High Court in
"since the claim for maintenance is to be filed in a suit, the civil Courts which have jurisdiction to try the suits of civil nature, have the power u/s 151 of the CPC to grant interim maintenance during the pendency of the suit."
69. A Division Bench of the Bombay High Court in Atul Sashi Kuntar Mude v. Niranjan Atul Mude AIR 1998 Bom. 234, had an occasion to interpret Sections 18, 19 and 20 of the Act and held that the Courts have power to grant interim maintenance.
70. The Supreme Court in
"Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code."
71. So, there cannot be any doubt regarding the inherent powers of the civil Courts in the mailers before it. The civil Court can exercise such inherent powers with the only limitation that it should not be inconsistent with other provisions of the CPC or contrary to any other law. In the light of the above discussion, it must be held that granting interim maintenance in a suit for maintenance is not inconsistent with any provision of the CPC or contrary to any other law.
72. For the aforementioned reasons, 1 am not able to agree with the view taken in Garivelli Appanna ''s case (supra). The reference is answered accordingly.
