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Ramchandra Behera and ors. Vs. Smt. Snehalata Dei - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberA.H.O. 13 of 1976 and Civil Revn. No. 56 of 1976
Judge
Reported inAIR1977Ori96
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantRamchandra Behera and ors.
RespondentSmt. Snehalata Dei
Appellant AdvocateC.V. Murthy, Adv.
Respondent AdvocateS. Mohanty and ;A.S. Naidu, Advs.
DispositionAppeal allowed
Cases ReferredSubramoni Iyer v. Padmavathi Ammal
Excerpt:
.....india v smt gita banik, 1996 (2) glt 246, are not good law]. - in the circumstances, we must proceed on the basis that the decrees are valid until the plaintiff is able to obtain a decree of declaration that the decrees are bad and not binding on her......high court in the case of mahomed abdul rahman v. tajunnissa begum, air 1953 mad 420; a single judge decision of this court in the case of k. venkataratnam v. kakinda kamala, air 1960 ori 157; and a bench decision of the andhra pradesh high court in the case of g. appanna v. g. seethamma, air 1972 andh pra 62. mr. mohanty for the plaintiff-respondent concedes that section 24 of the hindu marriage act has no application, but contends that the court had enough jurisdiction to make an order for interim maintenance and since the order has been made in exercise of sound judicial discretion no interference is called for. he relies on three decisions of the calcutta high court in smt. gouri v. tarni, air 1968 cal 305; nemai chand v. smt. lila, air 1968 cal 405; tarini gupta v. sm. gouri.....
Judgment:

R.N. Misra, J.

1. Appellant No. 2 Laxmidhar and appellant No. 3 Hira Dei are the parents of appellant No, 1. Appellant No. 4 is the subsequently married wife of appellant No. 1. The respondent applied to the court of the learned Subordinate Judge ,at Keonjhar for permission to sue in forma pauperis the appellant No. 1 for maintenance and other reliefs claiming that appellant No. 1, her husband, has not been maintaining her. In the said pauper application, the appellants took the stand that the marriage has been long since dissolved by a decree of the court and, therefore, the respondent has no right of maintenance. Thereupon, the respondent filed the suit for a declaration that the decree for judicial separation and the subsequent decree for divorce had been obtained by fraud and were not binding on her and it be declared that she continues to be the wife of appellant No. 1 and appellant No. 4 is not his married wife and she further claimed for maintenance. In this suit, she applied for interim maintenance and the learned Subordinate Judge by his order dated 15th of April, 1975, directed appellant No, 1 to pay maintenance at the rate of rupees one hundred from the date of institution of the suit till the conclusion of the trial.

Against this order, an appeal and a civil revision were carried to this Court. In both the matters notice of admission and hearing had been given. On 21st of January, 1976, in the Miscellaneous Appeal, our learned brother B.K. Ray, J., passed the following order:--

'Although notice of admission and hearing had been given, having heard the learned counsel for both sides, I do not find any merit in this appeal which is accordingly dismissed. No costs.'

The Civil Revision, however, remained undisposed of. Against the dismissal of the Miscellaneous Appeal, this Letters Patent Appeal has been carried. The Civil Revision remained pending and both the Letters Patent Appeal as also the Civil Revision were placed for admission before a Division Bench which admitted the appeal as also the Civil Revision.

2. Mr. Murty does not press the revision application at the hearing and contends that the decision of the Letters Patent Appeal would completely meet the situation.

3. In appeal, it is contended that the learned Subordinate Judge had no jurisdiction to make an order, of maintenance because Section 24 of the Hindu Marriage Act had no application to the matter and until the decree for divorce was vacated, plaintiff was not entitled to any maintenance and the court had no jurisdiction to make an order in exercise of its inherent powers. Reliance is placed on a Bench decision of the Madras High Court in the case of Mahomed Abdul Rahman v. Tajunnissa Begum, AIR 1953 Mad 420; a Single Judge decision of this Court in the case of K. Venkataratnam v. Kakinda Kamala, AIR 1960 Ori 157; and a Bench decision of the Andhra Pradesh High Court in the case of G. Appanna v. G. Seethamma, AIR 1972 Andh Pra 62. Mr. Mohanty for the plaintiff-respondent concedes that Section 24 of the Hindu Marriage Act has no application, but contends that the court had enough jurisdiction to make an order for interim maintenance and since the order has been made in exercise of sound judicial discretion no interference is called for. He relies on three decisions of the Calcutta High Court in Smt. Gouri v. Tarni, AIR 1968 Cal 305; Nemai Chand v. Smt. Lila, AIR 1968 Cal 405; Tarini Gupta v. Sm. Gouri Gupta, AIR 1968 Cal 567; A decision of the Punjab High Court in the case of Durga Das v. Smt. Tara Rani, AIR 1971 Punj & Har 141 (FB); a decision of the Rajasthan High Court in the case of Nathulal v. Smt. Mana Devi, AIR 1971 Raj 208; a decision of the Madras High Court in the case of Deivasigamani Udayar v. Rajarani Ammal, AIR 1973 Mad 369 and a decision of the Karnataka High Court in the case of K. Shankare Gowda v. Smt. S. Bharathi, AIR 1975 Kant 17.

4. It is not disputed that the plaintiff had married defendant No. 1 nor is the position disputed that the husband obtained a decree for judicial separation in Title Suit No. 19 of 1969 and a decree for divorce in Title Suit No. 15 of 1971 of the court of the learned Subordinate Judge at Cuttack. Plaintiff's stand is that the Court at Cuttack had no territorial jurisdiction to entertain the suit and summons in the proceedings had been suppressed and the decrees, therefore, are fraudulent The plea of want of territorial jurisdiction has been raised on the footing that no part of the cause of action arose within the jurisdiction of the court at Cuttack. The husband had alleged that the spouses had last lived together within the jurisdiction of the court at Cuttack and this fact is now challenged by the wife. As the question of jurisdiction or no jurisdiction is dependent upon a set of facts, and the court at Cuttack proceeded to entertain the suit on the footing that it had jurisdiction, until by clear proof the allegation of want of jurisdiction is established, it must be held that the court at Cuttack had jurisdiction to entertain the two earlier litigations. Mr. Mohanty for the plaintiff-respondent does not dispute the position that the burden to establish suppression of suit summons is heavily on the plaintiff. In the circumstances, we must proceed on the basis that the decrees are valid until the plaintiff is able to obtain a decree of declaration that the decrees are bad and not binding on her. On this footing, it must follow that on the date when the plaintiff sued in the court of the Subordinate Judge, Keonjhar, there was no subsisting marital relationship between her and the defendant No. 1. Plaintiff in her pleadings has admitted that defendant No. 1 has already married defendant No. 4 and they have been living together. We have already noted the concession of Mr. Mohanty for the plaintiff-respondent that the suit as framed by the plaintiff is not one under Hindu Marriage Act and Section 24 of that Act as such has no application to her petition for maintenance.

5. Mr. Mohanty maintained that an application for alimony could be made under Section 25 of the Hindu Marriage Act even after a decree for divorce and placed reliance on Section 25 of the Hindu Marriage Act to support his stand. Section 25(1) provides;--

'Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant, the conduct of the parties and other circumstances of the case it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.'

Mr. Murty for the husband claims and Mr. Mohanty for the divorced wife does not dispute that the application contemplated under Section 25(1) of the Act lies to the court which passed the decree. Admittedly the decree was passed by the court of the Subordinate Judge at Cuttack and, therefore, an application for permanent alimony and maintenance could not be maintained in the court of the Subordinate Judge at Keonjhar. Besides, the application which has been disposed of by the learned Subordinate Judge at Keonjhar is not one for permanent alimony ,and maintenance contemplated under Section 25(1) of the Hindu Marriage Act.

6. The only other question which remains to be examined is whether the court can in exercise of its inherent powers pass an order for maintenance. Mr. Murty for the husband-appellant relies on the ratio of the decision in Mahomed Abdul Rahman's case (ATR 1953 Mad 420). Venkatarama Aiyar, J., (as the learned Judge then was) sitting with Rajamannar, C. J., observed:--

'Thus there is overwhelming authority for the position that when the claim made in the paint is contested, the Court has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be by the final hearing in the suit. 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 Procedure Code 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 a 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 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.........'

It may 'be stated that the dispute arose out of grant of interim maintenance. This decision was approved by a learned Single Judge of this Court in K. Venkataratnam's case (AIR 1960 Ori 157).

A Bench of the Andhra Pradesh High Court in Gorivelli Appanna's case (AIR 1972 Andh Pra 62) examined the selfsame question of grant of interim maintenance with reference to the provisions of Section 18 of the Hindu Adoptions and Maintenance, Act and Section 151 of the Code of Civil Procedure. Dealing with Section 18 of the Hindu Adoptions and Maintenance Act, the Court observed:--

'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., (AIR 1968 Cal 305) 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 pendente lite is expressly conferred by Section 24 of the Hindu Marriage Act. The Hindu Adoptions and Maintenance Act does not contain a similar provision. Ray and Mukherjea, JJ. (AIR 1968 Cal 567) expressed the same view as Datta, J., on appeal. They also added that an order awarding interim maintenance was an order in aid of the suit. We do not see how it is. It is not a step towards final judgment. It is not intended to render such judgment effective. In another case Nemai Chand v. Smt. Lila, AIR 1968 Cal 405, Ray and Mukherjea, JJ., dealing with the same question said:

'The court has power to make interlocutory orders in aid of a suit. Denial of status does not take 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.' We are unable to agree with the learned Judges. Interlocutory relief, as the Judges call it, cannot, in our view, be granted except under express statutory authority. There is no statutory authority to award Interim maintenance pending an action for maintenance where the right to maintenance is in dispute.'

Dealing with the provisions of Section 151 of the Code of Civil Procedudre, the Andhra Pradesh High Court relied upon the Madras decision referred to above and a decision of the Mysore High Court in Mulimani Sappa Basavarajappa v. Basavanappa, AIR 1959 Mys 152; the decision of the learned single Judge of this Court referred to above and a decision of the Travancore-Cochin High Court in Subramoni Iyer v. Padmavathi Ammal, AIR 1954 Trav-Co 123. The Court also referred to the Calcutta decisions indicated above and took the view that inherent powers could not be exercised in a case where the right to receive maintenance was hotly contested.

7. The decisions relied upon by Mr. Mohanty may now be briefly indicated. Datta, J., in Gouri Gupta's case (AIR 1968 Cal 305) took the view that a claim for interim maintenance could be allowed during the pendency of a suit for maintenance grounded upon the claim recognised in Section 18 of the Hindu Adoptions and Maintenance Act and the defence allegation of unchastity would not deprive the court to award interim maintenance. In AIR 1968 Cal 567, is reported the decision of the Letters Patent Appeal from the order of Datta, J. The Division Bench of the Calcutta High Court differed from the ratio indicated in AIR 1953 Mad 420 ,as also the decision of the learned Single Judge of this Court by saying that if a claim for maintenance is denied that would not take away the jurisdiction of the court to make interim orders in a suit for maintenance. The jurisdiction of the court does not depend on the denial of a case by the defendant. It is one thing to say that the court declines to make an order in a case where facts are disputed and quite another thing to say that the court has no jurisdiction to make an order because the claim is contested. In 'Nemai Chand's case (AIR 1968 Cal 405) the question for consideration was whether a claim for interim maintenance under inherent powers could be sustained in a pending suit for maintenance and the court took the view that it can pass an order granting interim maintenance to the wife while the suit for arrear maintenance and future maintenance is pending, provided the wife is succeeded in establishing a prima facie case with overwhelming documentary evidence and mere denial of relation would not deprive the court of its power to grant interim maintenance. It is unnecessary to refer to the other decisions cited by Mr. Mohanty because they have proceeded more or less accepting the Calcutta view.

8. We are inclined to agree with the ratio indicated by the Madras High Court in the case reported in AIR 1953 Mad 420, as laying down the ordinary rule. 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 indicating circumstance where it can be and where it cannot be exercised. The decision in Nemai Chand's case (AIR 1968 Cal 405) turned on peculiar features. Similarly in Tarini Gupta's case (AIR 1968 Cal 567) the facts were somewhat peculiar. In the case before us, there is a decree staring against the plaintiff and the marital relationship has been judicially terminated. The burden lies on the plaintiff to extricate herself from the bar of res judicata by proving want of territorial jurisdiction of the court passing the earlier decree and by establishing perpetration of fraud in the matter of obtaining the decree. Until she is able to establish these, the decree of divorce binds her and she cannot be taken any longer to be a wife. We find that the husband has already married. In this setting it would not at all be appropriate to sustain the order of grant of interim maintenance.

9. We would accordingly allow the appeal, set aside the decision of the learned single Judge as also the decision of the learned Subordinate Judge-awarding interim maintenance. There shall be no order for costs of the appeal.

10. As suggested by counsel for both sides, we direct the learned Subordinate Judge to expeditiously dispose of the suit so that rights of parties may be made known and cleared without loss of time. We accordingly call upon the learn--ed Subordinate Judge to dispose of the suit within four months from now.

Das, J.

11. I agree.


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