S.M. Jhunjhunuwala, J.
1. In the suit filed by the plaintiff and the twominor children for maintenance, these notices of motion have been taken outby the plaintiffs for interim maintenance as prayed for therein.
2. The 1st plaintiff is the wife of the defendant. The 2nd plaintiff and3rd plaintiff are the minor son and minor daughter respectively of the 1stplaintiff. The marriage between the 1st plaintiff and the defendant was solemnised on 6th February, 1976 as per Sikh religious rites. The parties are governedby Hindu Law.
3. Two sons and two daughters are born out of this wed-lock. The2nd plaintiff who is the son of about 14 years age, is known as Tinku. The 3rdplaintiff who is a daughter of about 13 years old, is known as Pinki. One Harjinder Singh is a minor son of about 11 years age, is also known as Minku.Gurucharan Kaur is a minor daughter of about 8 years old. She is also knownas Dinki. The plaintiffs and the defendant as also the said Harjinder Singh andGurucharan Kaur resided together from the year 1984 in Flat bearing Nos. 103and 104 on the 1st floor of the building known as Silver Cascade' Mt. MarryRoad, Bandra (West); Bombay 400 050. The said Flat No. 103 and the Garageare owned by the 1st plaintiff and same are standing in the name of the 1stplaintiff in 'Silver Cascade Co-op, Housing Society Ltd'. Bandra, Bombay:400 050. The said Flat No. 104 stood in the name of the defendant and thesame has been disposed of by the defendant, The said Flats bearing Nos. 103and 104 have been matrimonial house of the 1st plaintiff and the defendant.The 2nd plaintiff is studying in the St. Elis School at Bandra. The 3rd plaintiffis studying in Duroelo Convent at Bandra. Both the 2nd and 3rd plaintiffs arein IX Standard. Prior to joining the aforesaid Schools, both the 2nd and the 3rdplaintiffs were studying at Panchagani as Boarders. The said Harjinder Singhand Gurucharan Kaur who were also studying at Panchagani., continue to studyat New Era High School at Panchagani. Harjinder Singh is in VIth Standardand the said Gurucharan Kaur is in IIIrd Standard.
3. On 9th May, 1981, the defendant left the matrimonial home withoutthe consent and knowledge of the 1st plaintiff and without any reasonablecause. It is the case of the 1st plaintiff that the defendant thereby deserted her.Since then the defendant is not residing at the matrimonial home. According tothe plaintiffs, the defendant while staying with the plaintiffs at the matrimonialhome used methods and laungage. which hurt the 1st plaintiff mentally andphysically. The general behaviour of the defendant qua the plaintiffs acquireda standard which did not make it possible for the 1st plaintiff to have normalmarried life with the defendant. Although the defendant was well looking afterthe plaintiffs and the other two children prior to leaving the matrimonial home,since May 1991, the defendant did not look after and maintain the plaintiffsand consequently, the suit has been filed by the plaintiffs for maintenance asprayed for in the plaint.
4. The defendant has denied his obligation to maintain the plaintiffs. Mr.Vashi, the learned Counsel appearing for the defendant, has submitted that thesuit being for recovery of maintenance,under the provisions of the Family CourtsAct, 1984, this Court has no jurisdiction. Mr. Vashi has further submitted thatthe issue pertaining to the jurisdiction of this Court has to be tried as a preliminary issue under the provisions of Section 9A of the Code of Civil Procedore,1908, Mr. Vashi has further submitted that assuming this Court has the jurisdiction to try to entertain and try the suit, there being no provisions Under Section 18of The Hindu Adoptions and Maintenance Act, 1956 (hereinafter for brevity'ssake referred to as 'The said Act') for grant of interim maintenance, this Courtcannot grant any interim relief to the plaintiffs in the Notices of Motion asprayed for or otherwise and as such, the Notices of Motion taken out by theplaintiffs are liable to be dismissed. Mr. Vashi, lastly submitted that the defendant being heavily indebted and having no sufficient income, cannot be made topay any maintenance amount to the plaintiffs.
5. So far as the issue of jurisdiction is concerned, in my opinion, Mr.Vashi is right in his submission that the said issue is to be tried as a preliminaryissue under the provisions of Section 9A of the Code of Civil Procedure, 1908(hereinafter referred to as 'The said Code'). When an objection to the jurisdiction of a Court of Law to entertain a suit is taken by any of the parties to thesuit, the Court is to proceed to determine the same at the hearing of an application for interlocutory reliefs therein. Any such application is required to beheard and disposed of by the Court as expeditiously as possible and is not to beadjourned to the hearing of the suit. Accordingly, I frame the following issueas a preliminary issue to be decided while disposing of the aforesaid notices ofmotion taken out by the plaintiffs: 'Whether by reason of Section 7 of the Family Courts Act, 1984, this Court has no jurisdiction to entertain or try thissuit.'
6. It is correct that the suit as framed and filed is for maintenance ofthe dlaintiffs. Section 7 of the Family Courts Act, 1984 reads as under :
7. Jurisdiction:-(1) Subject to the other provisions of this Act, AFamily Court shall:
(a) have and exercise all the jurisdiction exercisable by any DistrictCourt or any subordinate Civil Court any law for the time beingin force in respect of suits and proceedings of the nature referredto in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction undersuch law, to be a District Court of, as the case may be, suchsubordinate Civil Court for the area to which the jurisdiction ofthe Family Court extends.
Explanation:-The suits and proceedings referred to in this Sub-section are suits and proceedings of the following nature,namely:
(a) a suit or proceedings between the parties to a marriage for adecree of nullity of marriage (declaring the marriage to be nulland void, or, as the case may be, annulling the marriage) orrestitution of conjugal rights or judicial separation or dissolutionof marriage:
(b) a suit or proceeding for a declaration as to the validity of amarriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage withrespect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstancesarising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of anyperson;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the personor the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shallalso have and exercise:
(a) the jurisdiction exercisable by a Magistrate of the First Classunder Chapter IX (relating to order for maintenance of wife,children and parents) of the Code of Criminal Proceedure, 1973;and
(b) such other jurisdiction as may be conferred on it by any otherenactment'.
While putting reliance on Section 7(l)(f) to the Family Courts Act,1984 Mr. Vashi has submitted that this Court has the jurisdiction in respect ofsuit for maintenance.
7. In view of the judgment of this Court in the case of Kanak VinodMehta v. Vinod Dulerai, reported in : AIR1991Bom337 , I find no difficultyin holding that this Court has the jurisdiction to entertain and try the suit. Inthe case of Kanak Vinod Mehta (supra), the Division Bench of this Court hasheld that on a consideration of the relevant provisions of law and the decisions,the jurisdiction of this Court on its Original Side is not ousted of any of theprovisions contained in the family Courts Act, 1984 and this Court shallcontinue to exercise the jurisdiction vested in it under the Letters Patent andall others laws, notwithstanding the provisions of Sections 7 and 8 of the FamilyCourts Act, 1984. I hold that this Court has the jurisdiction to entertain andtry the suit and the preliminary issue is accordingly answered.
8. Mr Vashi, then submitted that Section 13 of the said Act does notprovide for awarding of interim maintenance pending decision on the claim tomaintenance in contest in the suit. In the submission of Mr. Vashi, this Courthas no power to award any interim maintenance and as such, the noticesof motion taken out by the plaintiffs are liable to be dismissed. Insupport of his submission, Mr. Vashi has relied upon the case of GorivolliAppanna v. Gorivelli Sethamma, reported in : AIR1972AP62 as also upon the of (Ramchandra Behera & Ors. v. Smt. Snehlata Del,reported in : AIR1977Ori96 ). It is correct that in both these casesrelied upon by Mr. Vashi, it has been held that the inherent powers,recognised by Section 151 of the said Code cannot extend to mattersother than procedural and that the Court cannot resort to the provisionsof Section 151 to encroach upon substantive rights of parties or an interlocutory application upon matter which await adjudication in the suit and thatno order Under Section 151 can be made except in aid by the suit. The Courts inthe aforesaid two cases have taken a view that the Court has no power to awardinterim maintenance unless statute expressly confers such a power on it. AHindu is under a legal obligation to maintain his wife, his minor sons, hisunmarried daughters and his aged parents whether he possesses any property ornot. The obligation to maintain these dependants is personal in character andarises from the very existence of the relationship between the parties.
9. A right of wife for maintenance is an incident of the status of estateof matrimony and a Hindu is under a legal obligation to maintain his wife. Ifin a suit for maintenance which is contested, the wife and the minor childrenare to wait indefinitely for receipt of maintenance amount till the suit is finallydecided and disposed of, it will not only cause irreparable harm and injury tothe wife and minor children but will virtually make it impossible for them tosurvive. Right to recover maintenance arises from day to day and is entitled tobe adjudicated upon, satisfied and sanctioned from time to time and from dayto day. In the case of Madhukar Akhand v. Bhima Akhand and Others, reported in : AIR1983Bom489 , this Court, while dissenting from the case ofGorivelli Appanna v. Gorivelli Sethamma (supra), has held that the right to grantinterim relief flows from the substantive right in Sections 18 and 20 of the saidAct themseleves and if not, Section 151 of the said Code can be called in aidto translate that right into practice and actual reliefs. The power to grant sucha relief is incidental ond ancillary to the power to grant final maintenance bothUnder Sections 18 and 20 of the said Act. It is further held that the right tomaintenance even in the household of a husband where the husband neglectsor does not provide maintenance to his wife is conferred by Section 18(1) ofthe said Act. It is not necessary for the operation of the said Section 18(1)that the wife must be also entitled to live separately in the circumstancesprovided under sub-Section (2). The liability to maintain is spelt out by Section18(1) and is absolute and is not subject to any conditions excepting so far asmay be provided by sub-Section (3). Where the principal power or main rightto grant relief is conferred upon the Court or upon an authority, such Courtor authority has also powers to grant those and such reliefs which are incidentalto the main relief. In that view of the matter I hold that the Court has thepower to award interim maintenance.
10. Mr. Vashi has lastly submitted that the defendant is heavily indebted and his income is not sufficient to make payment of any maintenanceamount to the plaintiffs. He has further submitted that the defendant has evenno house, to stay and as such, stays in Hotel. In the facts and circumstances ofthe case, it does appear to me that although the defendant had started withmodest life, prosperity bestowed on him. The defendant has adopted luxuriousstyle of living and while staying with the plaintiffs, the defendant maintainedthe 1st plaintiff and brought up the children born out of the wed-lock in thatstyle of living. It is possible that for carrying his business, as normally it isdone, the defendant might have taken loans and advances from Banks andother institutions. That by it self does not mean that the defendant is heavilyindebted or is a pauper or that he has not sufficient income to make paymentof maintenance amounts to his wife and children.
11. Mr. Narula, the learned Counsel appearing for the plaintiffs, hassubmitted that on the facts on record, it is evident that the monthly income ofthe defendant is not less than Rs. 1,50,000/-. The defendant owns 12 trucks(Vehicles) in his own name which he plies on hire. There are four trucks ownedby the 1st plaintiff but same are plied on hire by the defendant himself andincome in respect of these trucks are derived and received by the defendant.The defendant also owns a plot of land at New Bombay whereat he intends tohave his own Steel Factory.
Besides there being vast agricultural land owned by the defendant atMohalli near Chandigarh, the defendant also owns two flats at New Bombay.The defendant also owns a Bunglow having 14 bed rooms near Chandigarh.He has business premises at 14, Acharya Shopping Centre at Chembur. He hasaccount with various banks where the monies are deposited. Though thedefendant has deposited of his FIAT Car, presently the defendant owns aMaruti Van and a mini bus of Ford make. Even at the said matrimonial homeprior to deserting 1st plaintiff, the defendant used to keep four televisions, twoRefrigerators, Washing machine, Cooking range, Pioneer set music system, oneNational make two-in-one and one Sony two-in-one, two V.C.Rs, one importedweighing machine, one exercise cycle, National make oven geyser, driers, Cameras, furniture, crockeries etc. The defendant had employed three maid servantsand two chauffeurs. On deserting the 1st plaintiff, the defendant has removedall these articles from the matrimonial home and has left the plaintiffs in suchprecarious condition that the 1st plaintiff is now required to cook on kerosenestove. Prior to the 2nd and 3rd plaintiffs being shifted from Panchagani, allthe said four children of the 1st plaintiff and the defendant were gettingeducation in New Era High School at Panchgani. The 2nd plaintiff and 3rdplaintiffs are now residing with 1st plaintiff and the other two children are withthe defendant. The said two children are still continuing their education atPanchgani which is very expensive. The defendant had to pay as um ofRs. 65,000/- each for the two elder children and about similar amount for thetwo younger children for studying at New Era High School at Panchagani.After the 2nd and 3rd plaintiffs shifting to Bombay, the defendant is continuingto bear and pay the educational expenses for the other two children who arewith him. Although there is cryptic effort on the part of the defendant to denyhis monthly income at Rs. 1,50,000/- in the letters which the defendant hadwritten to the 1st plaintiff with a view to have amicable settlement of distribution of the properties, the defendant has in fact admitted that his monthlyincome is at Rs. 1,50,000/-. He has further admitted that he own flats at NewBombay as also a plot of land whereat the factory is to be started by him. Hehas also admitted that he owns properties at Chandigarh and that he receivesincome which is not accounted for. He has further admitted that larger part ofhis income is in cash and that if the settlement for division of properties isarrived at, the 1st plaintiff would get lacs of rupees. In view of these facts,which have been brought on record, it is not possible to hold that the defendanthas no means to pay maintenance amounts to the plaintiffs.
12. However, the question does arise as to what is the reasonableamount to be paid by the defendant to the plaintiffs as and by way of interimmaintenance. In support of the Notice of Motion bearing No. 2346 of 1991taken out by the plaintiffs, an affidavit has been affirmed by the 1st plaintiffto which the statement of the amounts required to be spent on education ofthe 2nd and 3rd plaintiffs is annexed. As per the said statement, about sum ofRs. 3,500/- per month is required to be spent on the education of the 2ndplaintiff and about Rs. 3.000/- per month is required to be spent on the education of the 3rd plaintiff. Besides the amounts so required to be spent oneducation of these two children, further amounts are also required for maintenance of these children. In respect of the said flat where the 1st plaintiff isresiding with the 2nd and 3rd plaintiffs, the defendant used to make paymentof outgoings and maintenance charges prior to the defendant deserting the 1stplaintiff. As aforesaid, since the month of May 1991, the defendant has notmade any payment as and by way of maintenance to the plaintiffs except ad-hocmaintenance amount fixed by Dhanuka, J., in these proceedings. I am informedby the learned Counsel appearing for the plaintiffs that about the sum ofRs. 22,000/- is immediately required to be paid to the said Society in respect ofthe said flat for maintenance. Municipal taxes and Sinking Fund etc. The plaintiffis unemployed and has no source of income. Four truck though in the namethe 1st plaintiff are plied by the defendant and the income derived therefromis also received by the defendant. On the admission of the defendant himself,he used to pay to the 1st plaintiff the sum of Rs. 8,000/- every month to meethousehold expenses which includes ration, milk, day-to-day expenses, servants'salary. The defendant has further admitted that to meet the requirements ofof the 1st plaintiff, he used to pay to her the sum of Rs. 18,000/- every monthin addition to the said sum of Rs 8,000/- per month for household expenses.The 1st plaintiff needs these amounts for her maintenance. The defendant hasdenied to make payment of the maintenance amount to the 1st plaintiff allegingthat the 1st plaintiff is having illicit relations with various persons. The defendant has denied to make payment of maintenance amounts to the 2nd and3rd plaintiffs on flimsy grounds of behaviour of the 2nd and 3rd plaintiffsbeing not proper inasmuch as the 2nd plaintiff is guilty of allegedly committingtheft in the school and the 3rd plaintiff had allegedly attempted to give poisonin whisky to the defendant. Prima facie, the allegations made by the defendantare baseless and without any substance and as such can not be taken intoconsideration in fixation of maintenance amounts payable by the defendantto the plaintiffs. In any event, the allegations made by the defendant arerequired to be proved which the defendant has not been able to establish.Taking over all view of the facts and circumstances of the case and documentary evidence on record, I am more than satisfied that the defendant has sufficient means to pay the maintenance amounts to the plaintiffs keeping in mindthe amounts which are required to be spent for on mere education of the 2ndand 3rd plaintiffs who are residing with the 1st plaintiff, I fix the interim maintenance payable by the defendant to each of the 2nd and 3rd plaintiffs atRs. 5,000/- per month. So far as the 1st plaintiff is concerned, besides requiringthe amount to meet her daily requirements, the 1st plaintiff is also entitled toenjoy the status which the defendant is presently enjoying. The defendant asaforesaid, prior to living the matrimonial home, was accustomed to live aluxurious life and maintained the plaintiffs also in the same style of living. Thedefendant having taken entire articles and belongings from the said matrimonialhome and having left the 1st plaintiff to cook on kerosene stove and alsokeeping in mind the spiral rise in prices and cost of living, in my view, reasonable amount of interim maintenance to be paid by the defendant to the 1stplaintiff is Rs. 10,000/-per month. Besides these amounts, the defendant hasalso to pay the arrears of maintenance charges, Municipal Tax and SinkingFund etc., payable to the said Society in respect of the said Flat No. 103 whichaggregates to Rs. 22,000/.
13. Accordingly, I pass the following order:
(a) The defendant do pay to the 1st plaintiff the sum of Rs. 10,000/-every month as and by way of interim maintenance for the 1stplaintiff and the sum of Rs. 5,000/- every month as and by wayof maintenance for the 2nd plaintiff and further sum ofRs. 5,000/- every month as and by way of maintenance for the3rd plaintiff with effect from 1st January, 1992. First of suchpayments for the month of January, 1992 shall be made on orbefore 31st January, 1992 and subsequent payments for eachsucceeding month shall be made on or before the last day ofeach and every succeeding month.
(b) The defendant is ordered and directed to pay to the 1st plaintiffadditional sum of Rs. 22,000/- for making payment of arrears ofmaintenance charges, Municipal Tax, Sinking Fund etc. payablein respect of the said Flat No. 103 to'Silver Casacade Co-op.Housing Society Ltd.' Bandra.
(c)Notice of Motion No. 2240 of 1991 is also made absolute interms of prayer (c) thereof;
(d) The defendant is ordered and directed to pay to the 1st plaintiffthe costs of both Notices of Motion bearing Nos. 2240 of 1991and 2346 of 1991.
Both the Notices of Motion are accordingly disposed of.
14. Prothonotary is directed to issue certified copy of the minutes ofthe order to the concerned parties on priority basis.