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K. Venkataratnam Vs. Kakinda Kamala - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 114 of 1958
Judge
Reported inAIR1960Ori157; 26(1960)CLT159
ActsHindu Law; Code of Civil Procedure (CPC) , 1908 - Sections 151
AppellantK. Venkataratnam
RespondentKakinda Kamala
Appellant AdvocateL.K. Das Gupta and ;G.N. Sen Gupta, Advs.
Respondent AdvocateP.V.B. Rao, Adv.
DispositionPetition allowed
Cases ReferredMohemed Abdul Rahaman v. Tajunnissa Begum
Excerpt:
.....his wife has been misleading her not to return to her husband. thus battled in the criminal court, the wire tiled the present suit for recovery or separate maintenance and residence as aforesaid and prayed for grant of interim maintenance on the allegation that although she has been living in the house of her maternal uncle, he is too poor to maintain her......an order passed by the learned subordinate judge, berhampur, allowing the plaintiff wife, as interim maintenance, a consolidated amount of rs. 30/- on the petition to her suit against her husband, the defendant, for separate maintenance on the allegation that the defendant husband was cruel to her and that she had to abandon her husband's house and put up in the house of her maternal uncle. the said application for interim maintenance was opposed by the husband, on the ground that she was not entitled to such separate maintenance as she, of her own choice deserted him. the learned subordinate judge, however, on the basis of the admitted position that the plaintiff is the wife of the defendant and now living separate from her husband made an order for interim maintenance as.....
Judgment:
ORDER

S. Barman, J.

1. The defendant husband is the petitioner in this Civil Revision directed against an order passed by the learned Subordinate Judge, Berhampur, allowing the plaintiff wife, as interim maintenance, a consolidated amount of Rs. 30/- on the petition to her suit against her husband, the defendant, for separate maintenance on the allegation that the defendant husband was cruel to her and that she had to abandon her husband's house and put up in the house of her maternal uncle. The said application for interim maintenance was opposed by the husband, on the ground that she was not entitled to such separate maintenance as she, of her own choice deserted him. The learned Subordinate Judge, however, on the basis of the admitted position that the plaintiff is the wife of the defendant and now living separate from her husband made an order for interim maintenance as aforesaid. Hence this revision.

2. Mr. L.K. Das Gupta, learned counsel appearing for the husband defendant (petitioner before this Court) contended that the wife is not entitled to separate maintenance and so the court should not grant interim maintenance. In order that wife may be entitled to separate maintenance she must prove that she is the legally wedded wife of the husband and also that the husband has been cruel to her. A wife's first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection. She is not, therefore, entitled to separate residence or maintenance, unless she proves that by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifiable cause, she is compelled to live apart from her husband. Neither unkind-ness not amounting to cruelty nor the fact that the husband has taken a second wife nor ordinary quarrels between husband and wife justify the wife in leaving her husband's house. But she will be justified in leaving her husband's house and will be entitled to separate maintenance from him if he kept a concubine in his house or habitually treated her with such cruelty as to endanger her personal safety (Mulla's Principles of Hindu Law, 10th Edi-' lion, page 610, Article 555).

In the present case, the plaintiff is the lawfully wedded wife of the defendant-petitioner. The wife brought a suit for recovery of separate maintenance from the husband at the rate of Rs. 100/-per month, on the allegation that she was compelled to leave the house of her husband on account of alleged cruelty of the husband on her. The husband is contesting the suit, on the ground that the allegation of cruelty is false and that the wife was ill-advised by her maternal uncle to leave his (his-band's) house so that the maternal uncle may make a personal bargain through her by way of extracting maintenance from her husband. The husband also makes a further grievance that his wife stealthily abandoned his house through the scavenger's door and took away with her seventeen tolas of gold ornaments. The husband is willing to get back his wife and make a happy home, but the maternal uncle of his wife has been misleading her not to return to her husband. It also appears from record that at the instance of the said maternal uncle, she filed a maintenance case M.C. 79 of 1955 before the Special First Class Magistrate of Berhampur under Section 488, Criminal Procedure Code, against the husband on the very same allegation of cruelty. The said criminal case was dismissed, upon being contested by the husband and the allegation of cruelty was found to be false. Thus battled in the Criminal Court, the wire tiled the present suit for recovery or separate maintenance and residence as aforesaid and prayed for grant of interim maintenance on the allegation that although she has been living in the house of her maternal uncle, he is too poor to maintain her. These, indeed, are matters which remain to be decided in the suit itself on merits.

3. The question is whether or not the wife is entitled to separate interim maintenance where the allegation of cruelty is being denied. In this context Mr. L. K. Dasgupta cited before me a decision of the Madras High Court in Latchanna Dora v. Mallu Dora, AIR 1941 Mad 55 where it was held that there is no inherent power in a court to act without findings, so that if a matter is asserted by the plaintiff and denied by the defendant, as in the present case, the court cannot presume that the plaintiff's allegations are true and give some interim relief pending disposal of the suit. Hence where A brings a suit against B for certain property alleged to have been allotted to A in accordance with certain agreement and B does not admit that A is entitled to the property claimed by him, the Court has no jurisdiction to pass an interim order of maintenance. Thus interim maintenance can only be granted, where the allegation is admitted and the wife is also entitled to separate maintenance under certain special circumstances as stated in Mulla's Principles of Hindu Law cited above.

Where the wife is entitled to separate maintenance and the only question is as to quantum of such separate maintenance then the Court should by way of interim relief grant some interim maintenance to her. Where, however, her very right to separate maintenance is in dispute and contested, as in the present case, she is not entitled to any separate interim maintenance. In other words, she must establish a prima facie right to separate maintenance in order to enable the Court to make an order for interim maintenance. In Gopal Saran v. Sita Devi, AIR 1924 Pat 69 the facts shortly were these: The plaintiff wife, who was by birth an Australian British subject, was married to the defendant husband in the Hindu form at Lucknow in 1909.

The plaintiff wife brought a suit against the defendant husband to enforce a charge upon certain properties belonging to the defendant, which were charged with payment of an annuity of Rs. 36,000/-per annum payable by monthly instalments of Rs. 3,000/- under a deed granted by the defendant to the plaintiff. Subsequently under a further deed, a portion of annuity amounting to Rs. 15,000/- per annum was made permanent and heritable. In the said suit the plaintiff wife presented a petition to the Subordinate Judge of Gaya praying that a receiver might be appointed of the property charged with the payment of the annuity and that he should be directed to pay to the plaintiff the sum of Rs. 3,000/- per month, or such other sum as the Court should think fit pending the final determination of the suit and other reliefs. On that application the learned Subordinate Judge directed that the defendant husband should pay to the plaintiff wife an allowance of Rs. 1,250/- per month until disposal of the suit.

It was against this order of the learned Subordinate Judge that the defendant husband came in appeal and revision before the High Court. On these facts, Division Bench of the Patna High Court held that Section 151 Civil Procedure Code saves the Court's inherent power to make such orders as may be necessary ior the ends of justice or to prevent abuse of the process of the Court, but there is no rule of law or equity which requires, in the interest of justice, that a plaintiff suing to enforce a contract for the payment of money, where the claim in disputed, should be awarded a portion of the amount claimed before his right has been established by the suit brought for that purpose. In this view of law, the Patna High Court came to the conclusion that there appeared to be no ground disclosed on the facts of that particular case and certainly no authority has been cited before the court to justify the lower court in passing an order granting the plaintiff a portion of the relief claimed before the suit has been tried.

In the absence of any authority supporting such a contention, it seemed to their Lordships that they ought not to allow the order for interim relief to stand. Thus, then it is a question of principle whether such interim maintenance can be granted in view of the decisions cited above, laying down sound principles underlying them, on the basis of which such cases are to be considered and decided. In the present case before this Court the wife could claim separate maintenance only if she could establish a prima facie case of cruelty of the husband on her and then she would be entitled to separate maintenance as of right. But at this stage, before the suit is heard on merits, and in the absence of any prima facie case in her favour, I do not think that she is entitled to any interim maintenance. A Division Bench of the Madras High Court in Mohemed Abdul Rahaman v. Tajunnissa Begum, AIR 1953 Mad 420 expressed the same view on the point, while holding that 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 a 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. On the basic principles, the Madras High Court held that in a suit for maintenance by the wife where the claim is hotly contested, an order for payment of interim maintenance is without jurisdiction.

4. Mr. P.V.B. Rao, learned Counsel for the plaintiff wife, contended that each case will depend on the particular facts and circumstances and that the learned lower Court having granted interim maintenance of Rs. 30/- to the wife the order should not be interfered with in revision. According to the learned Counsel it was a discretionary order passed by the lower Court and no question of want of jurisdiction or illegality arises in the present case. The learned counsel further contended that the decisions, cited by Mr. L. K. Dasgupta appearing for the husband petitioner, had no application to the facts and circumstances of this case. No decision was however cited on behalf of the wife in support of the view contrary to that upheld in the decisions cited above which were relied on, on behalf of the husband.

5. In this view of the position in law, the order of the learned Subordinate Judge is set aside. The plaintiff's wife's application for interim maintenance is therefore dismissed. In the result this revision is allowed, but in the circumstances of the case without costs.


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