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Deivasigamani Udayar Vs. Rajarani Ammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1050 of 1972
Judge
Reported inAIR1973Mad369; (1973)1MLJ383
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18; Indian Penal Code (IPC), 1860 - Sections 494; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantDeivasigamani Udayar
RespondentRajarani Ammal
Cases ReferredSwaranambiki Motor Service v. Wahita Motor Service
Excerpt:
.....husband for maintenance - decree in favour of respondent - petitioner-husband contended that no interim maintenance could be ordered in suit under section 18 - fact that section 18 does not make provision for granting interim maintenance cannot negative claim of respondent - absence of specific provisions in act of 1956 immaterial - civil court had jurisdiction to grant interim maintenance. - - 288 of 1970 in the subordinate judge's court, cuddalore under section 18 of the hindu adoptions and maintenance act, 1956 against her husband for separate residence and maintenance on the ground that she and the defendant were leading a happy married life till the beginning of 1969, that the defendant unlawfully contracted a second marriage on 18-6-1970, that she preferred a complaint..........is practically impossible for her to live with her husband any longer. on these allegations, the wife claimed maintenance at rs. 1000/- a month. she also filed i. a. no. 331 of 1971 for interim maintenance at the same rate. the husband in his counter contested the claim of the wife for separate residence and maintenance and he also contended that she is not entitled to interim maintenance and that in any event, the claim of rs. 1000/- made against him is arbitrary, and excessive. the learned subordinate judge allowed the application of the wife and directed the defendant to pay interim maintenance at rs. 250/- per month. against this order the present revision petition is filed by the husband.2. sri r. s. venkatachari, learned counsel for the petitioner contends that no interim.....
Judgment:
ORDER

1. The husband who has been directed to pay interim maintenance to his wife is the petitioner herein. The wife filed O. S. No. 288 of 1970 in the Subordinate Judge's Court, Cuddalore under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 against her husband for separate residence and maintenance on the ground that she and the defendant were leading a happy married life till the beginning of 1969, that the defendant unlawfully contracted a second marriage on 18-6-1970, that she preferred a complaint under Section 494, Indian Penal Code in C. C. No. 290 of 1970 before the Sub-Divisional Magistrate, Villupuram and the respondent was convicted for the offence of bigamy and that that ever since the husband has been adopting an unnatural attitude and is extremely antagonistic in his behavior towards her and that it is practically impossible for her to live with her husband any longer. On these allegations, the wife claimed maintenance at Rs. 1000/- a month. She also filed I. A. No. 331 of 1971 for interim maintenance at the same rate. The husband in his counter contested the claim of the wife for separate residence and maintenance and he also contended that she is not entitled to interim maintenance and that in any event, the claim of Rs. 1000/- made against him is arbitrary, and excessive. The learned subordinate Judge allowed the application of the wife and directed the defendant to pay interim maintenance at Rs. 250/- per month. Against this order the present revision petition is filed by the husband.

2. Sri R. S. Venkatachari, learned counsel for the petitioner contends that no interim maintenance could be ordered in a suit for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956. In support of his contention he relied upon the recent judgment of a Division Bench of the Andhra Pradesh High Court reported in Garivelli Appanna v. Gorivalli Seethamma, : AIR1972AP62 . Chinnappa Reddi, J., who delivered the judgment on behalf of Bench in the said case held that inherent powers of Court recognized by Section 151, C.P.C., cannot extend to substantive rights of the parties and that in an interlocutory application upon matters awaiting adjudication in the suit no interim provision could be made. In the result the learned Judge held that where the suit is for maintenance under Section 18 of the Act, no order of interim maintenance could be made. The learned Judge further referred to Section 18 of the Act and held that the said provision or any other provision does not authorize the award of interim maintenance pending determination of rights to maintenance which is in contest in the suit. The facts in the above case are that in answer to the wife's application for maintenance, the husband contested the very right to maintenance in the suit and in the circumstances the learned Judges held that no interim maintenance could be ordered. The learned Judges referred to a decision of this Court reported in Abdul Rehman v. Tajunnissa Begum, : AIR1953Mad420 , the decision of a Division Bench consisting of Rajamannar, C. J. and Venkatarama Aiyar, J. Venkatarama Aiyar, J., who delivered the judgment on behalf of the Bench observed at page 421 as follows:

'Thus there is overwhelming authority for the position that when the claim made in the plaint 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 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. In the result, the appeal will be allowed and the Order of the learned Judge will be set aside.'

In that case also the husband denied the marriage and his liability to maintain the wife and this circumstance explains the ultimate conclusion of the learned Judges in refusing to order interim maintenance pending the suit. The next decision referred to is K. S. Subramania Iyer v. Padmavathi Ammal, AIR 1954 Trav Co 123, where a single Judge of the Travancore Cochin High Court ordered interim maintenance on the admission of the parties. In Muniammal v. Ranganatha Nayagar, : AIR1955Mad571 , Ramaswami, J., referring to : AIR1953Mad420 , held that the said decision cannot be considered as an authority refusing interim relief in all cases of maintenance or partition etc., where vague and general allegations are made denying the plaintiff's claim. In the case before Ramaswami, J., the marriage was not disputed. Under those circumstances, the learned Judge held that the decision in : AIR1953Mad420 , is not an impediment in granting interim maintenance in all cases where the plaintiff, (the wife) has established a substantial prima facie case and if her status and right to claim relief are not hotly contested with a wealth of details, volume of prima facie evidence, documentary or circumstantial. In Basavarajappa v. Basavannappa, AIR 1959 Mys 152, which related to a son's claim against the father for maintenance and the father's denial that the plaintiff is his son, the claim for interim maintenance by the son was negatived. Similarly in Venkataratnam v. Kamala, : AIR1960Ori157 where the wife claimed interim maintenance in a suit for maintenance as no prima facie case was established and the claim was hotly contested by the husband, interim maintenance was negatived. In Jain v. Jain, : AIR1968Cal405 , this question was considered elaborately. The head note in the said judgment brings out the ratio of the decision. The head note is as follows:--

'The Court can pass an order granting interim maintenance to the wife while the suit for arrears of maintenance and future maintenance instituted by her is pending, when the wife succeeds in establishing a prima facie case with overwhelming documentary evidence in the handwriting of the husband describing or addressing her to be a wife. Mere denial of relation with plaintiff unsupported by any evidence on behalf of the husband as opposed to assertion by the wife supported by corroborative photographic evidence and corroborative documentary evidence in the handwriting of the husband tilts the scale in favor of the wife and proves the prima facie case which merits interim relief in favor of the wife in aid of the suit. When the jurisdiction of the Court is attracted by filing a suit, the Court has power to make interlocutory orders in aid of the 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.'

3. In the present case, it is clear that the plaintiff and the defendant are husband and wife. That they were living together amicably until shortly before the suit is not in dispute. Whatever may be the ground urged by the plaintiff in support of her claim for maintenance, the status of the parties being admitted, the grant of maintenance ultimately is a matter of course. Bearing the general principles in view, namely the acts of court including its delays ought not to prejudice and cause hardship to any party, the power to make an interim order is implicit, ancillary and a necessary corollary of the power to entertain a suit and pass final orders therein. In that view, I consider that the order providing interim maintenance to a wife in a suit for maintenance is justified. The mere fact that Section 18 of the Act does not make a provision for granting interim maintenance cannot negative the claim for interim maintenance. In dealing with the powers of the appellate tribunal under the Motor Vehicles Act, where a contention was raised that the appellate Tribunal has no power to grant an interim relief as there is no specific provision in the enactment itself, Rajagopala Aiyangar, J., in Swaranambiki Motor Service v. Wahita Motor Service, 1950 2 MLJ 12 upheld the power of the Tribunal and held that even to cases before tribunals exercising quasi judicial powers, the power to grant interim relief always exists. This is an a fortiori case where the question arises in a suit in a civil Court. I therefore consider that the absence of a specific provision in the Hindu Adoptions and Maintenance Act, 1956, is immaterial and that the civil Court has jurisdiction to grant interim maintenance.

4. Sri R. S. Venkatachari, learned counsel for the petitioner contends that the quantum of maintenance of Rs. 250/- is high. The learned Subordinate Judge has exercised his discretion in fixing the quantum of maintenance at Rs. 250/- and I am not inclined to interfere with that discretion. The suit is of the year 1970. I direct the Subordinate Judge to dispose of the suit before the closing of the Court for summer recess. There will be no order as to costs.

Petition dismissed.


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