R.M. Datta, J.
1. In this application the main point for decision is whether pending the decree being passed in the suit for maintenance an order for payment of interim maintenance can be made in an interlocutory application. The point is of much substance because under the Hindu Adoptions and Maintenance Act (No. 78 of 1956) there is no specific provision for payment of interim maintenance as is the case with some other statutes viz. the Indian Divorce Act of 1869. the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956.
2. In the suit filed herein the wife has claimed Rs. 800/- per month for maintenance and residence. She has also claimed maintenance and education expenses of her daughter Tapati. She has also prayed for a declaration of charge on the immovable properties for the due payment of the decretal amount when passed.
3. The marriage is admitted. The daughter is now 22 years of age. The applicant wife has been staying in a separate residence from the husband since quite some past but in spite thereof the husband had all long been voluntarily paying a sum of Rs. 100/- per month on account of the wife's maintenance until about August, 1966.
4. The wife alleges cruelty by the husband and of his loose morals. There are allegations by the husband too against the wife suggesting without giving any particulars that she was disloyal to the husband and further that Tapati was not his daughter. According to the husband to avoid scandal this fact was not disclosed so long until the filing of this suit. Admittedly, till about July/August 1966 the husband was also meeting the expenses of Tapati as regards her maintenance and educational expenses were concerned. According to him, when at that time in 1966 Tapati went away from his custody and care he stopped giving her maintenance and educational expenses, It is an admitted case that till about August 1966 the husband all throughout has been paving a sum of Rs. 100/- per month and month by month for the maintenance of the wife in spite of the aforesaid allegations against the wife. It is said that it was not paid directly to the wife but through the elder brother of the wife. But since about that time the said monthly payment had been stopped. The result was that the wife had to file the present suit in March, 1967
5. On behalf of the husband it has been argued that the fact that the wife is living separately from her husband might disentitle her to obtain a decree in the suit unless she can establish at the trial that her living in a separate residence was due to any of the grounds mentioned in Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act 1956 (Act 78 of 1956). It is further argued that in case any payment order by way of interim mainteiance is made that would amount to the passing of a decree for such amount without hearing the case on evidence and without a decree being passed thereon. It is argued that since the question of payment of interim maintenance has not been provided for in the said statute, the same cannot be granted in an interlocutory application. Furthermore, it is contended that the orders for injunction or for the appointment of a receiver or for the attachment before judgment or the like are all made pursuant to the provisions contained in the Code of Civil Procedure for such reliefs but in the instant case there is no such provision for payment of interim maintenance.
6. On behalf of the wife the argument has been based mainly on the fact that this Court had on many previous occasions passed such orders for interim maintenance and in support of that Mr. Robi Goho. learned counsel, has relied on several unreported decisions. One of such cases was decided by Ray, J. on 30th January, 1964 in Suit No. 2213 of 1963, Sabitri Lala v. Satish Ch. Lala (Cal) granting an interim maintenance to the extent of a sum of Rs. 100/- per month pending the disposal of the said suit. On appeal from the said order being Appeal No. 159 of 1964. (Satish Ch. Lala v. Sabatil Lala (Cal) Sinha J. (as he then was, now the present Chief Justice) sitting with R. N. Dutt, J. on 18th December. 1964 dismissed the said appeal with costs. No judgment was delivered by either Court.
7. Mr. Gupta does not dispute the said contention of Mr. Goho but while admitting such fact he argues that in those cases this specific point was neither taken nor decided and there is no decision of this Court on this point.
8. Mr. Gupta has very strongly relied on the case of Mohamad Abdul Rahaman v. Tajunnissa Begum, : AIR1953Mad420 . There the Division Bench of the Madras High Court has held that to grant any relief in an Interlocutory application would be to grant relief which can properly be granted only by the ultimate determination in the suit and the decree following thereon. The said division bench further observed that apart from the powers conferred by the Code of Civil Procedure in granting reliefs there could be no inherent jurisdiction in Court to grant Interim relief which properly ought to be granted only by the decree after determination of the points in controversy. Accordingly, it was held that the order of the learned trial Judge grant-ing such relief in the suit in which the claim of the plaintiff was hotly contested was without jurisdiction.
9. It should be remembered that in the case before the Madras High Court the fact of marriage was in serious dispute and was hotly contested whereas in the present case before me the marriage is admitted. Secondly, it should also be remembered that that was a case in which the said provision of the Hindu Adoptions and Maintenance Act of 1956 was not applicable and as such was not considered.
10. In my opinion, under Section 18(1) of the said Hindu Adoptions and Maintenance Act of 1956 the husband is bound to maintain the wife so long as the marriage subsists. Under Sub-section (2) thereof even separate residence of the wife would not stand in the way of the wife's right to get maintenance from the husband if certain conditions are shown to exist. In other words, the obligation to maintain the wife would still remain on the husband even though the wife might be living separately from the husband until it was proved at the trial that the wife was residing separately from the husband not due to any of the conditions provided under Section 18.
11. Section 18 of the Hindu Adoptions and Maintenance Act being Act 78 of 1956 provides as follows:
'18. (1) Subject to the provisions of this section, 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 forfeiture of 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 a 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 is 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 another religion.'
12. Under Sub-section (1) of Section 18 of the above Act once the relationship of husband and wife is established the wife gets maintenance as a matter of course. Under Sub-section (2) her right to live separately from her husband has not been denied if such separate residence was necessary on account of the grounds mentioned under Sub-section (2).
13. In my opinion, this provision of Section 18 makes it imperative and/or obligatory on the husband to maintain the wife so long as the marriage subsists. It is only under Sub-section (3) that the said obligation, is completely extinguished. A bare allegation of unchastity would not, in my opinion, stand in the way for granting interim maintenance. In the instant case the fact remains that the husband was so long until about August 1966 paying a sum of Rs. 100/- per month by way of maintenance and the fact that such payment was being made all throughout in spite of such separate residence of the wife, prima facie goes to show that there was a good justification for the wife's residing separately from the husband until the contrary is proved at the trial. The fact that a sum of Rs. 100/- per month was being paid voluntarily by the husband for the wife month by month and every month prima facie goes to show the ability of the husband to pay maintenance at least to that extent. These are factors which weigh my consideration in favour of making an order for interim maintenance in favour of the wife pending the decision of the suit.
14. In my opinion, the reason why there is no special provision for payment of Interim maintenance under the Hindu Adoptions and Maintenance Act of 1956 when in respect of similar other statutes there are such provisions, is, that this Hindu Adoptions and Maintenance Act of 1956 deals with cases of maintenance where the marriage subsists and consequently the obligation of the husband to maintain remains all throughout and as such the Court by virtue of the said Section 18 of the said Act of 1956 has power to grant Interim maintenance in a suit filed by the Wife against the husband in appropriate cases where the husband has property and income sufficient to maintain the wife but in spite thereof he fails to perform his marital obligation.
15. The next point that weighs my consideration in favour of granting interim maintenance in a proper case where a suit for maintenance under the said Act of 1956 has been filed, is that it would otherwise look quite incongruous if in such circum-stances the Court would be powerless to grant interim maintenance in favour of the wife with the result that the wife would have to face starvation by waiting till the decision of her suit. It is common knowledge that it takes at least some subtantial time to get a suit heard after the same is instituted in Court. There might again be further proceedings in appeal till the matter reaches finality. Pending such final decision what would be the means of the wife to maintain herself? If the husband was under an obligation to maintain the wife prior to the filing of the suit under which principle would such obligation cease to be effective when a suit has been filed?
16. The next point which has to be considered in this case is whether this order for payment of interim maintenance would be without jurisdiction as has been held in the case of, : AIR1953Mad420 . The question assumes importance because this Judgment has been followed by the Orissa High Court as also by the Mysore High Court.
17. In my opinion, the said judgment of the Madras High Court has been to a great extent misunderstood. In my opinion it cannot be said, as a general rule that inasmuch as the Code of Civil Procedure did not provide for granting interim maintenance therefore to grant the same would be acting without jurisdiction in appropriate cases, such as the case before me, the power under Section 151 of the Code of Civil Procedure shoud be invoked. Tn suitable 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 conferred under Section 151 of the Code of Civil Procedure. If the Court fails to exercise such powers in such appropriate cases then the process of the Court would be abused in the manner as indicated above viz., the husband will take advantage of the filing of the suit by the wife and stop maintaining his wife since the filing of the suit. The obligation to maintain the wife during the subsistence of the marriage although remains, the husband will be excused, so to say, from performing such obligations during the time the suit could not be heard and disposed of. In other words, the very purpose for which Section 151 of the Code of Civil Procedure has been enacted would be defeated.
18. In the case of Mulimani Sanna Basavarajppa v. Basavannappa AIR 1959 Mys 152 Somnath Iyer J. in following the said Madras case held that the defendant having denied that the plaintiff was his son the Court had no jurisdiction under Section 151 of the Code of Civil Procedure to make an order granting interim maintenance to the plaintiff. It should be noticed that the plaintiff in that case brought that suit for a declaration that he was a son of the defendant No. 2 and the defendant No. 2 denied such a claim. Under the circumstances the said case is also distinguishable from the facts of the case before me.
19. In the case of K. Venkataratnam v. Kakinda Kamala, : AIR1960Ori157 Barman J. (as he then was) refused to grant interim maintenance to the wife because the wife could not establish a prima facie case of cruelty of the husband on her and followed the said Madras case of : AIR1953Mad420 . The above Orissa case did not consider the effect of Section 18 Sub-sections (1) and (2) of the Hindu Adoptions and Maintenance Act of 1956 It appears from the said judgment of the Orissa High Court that at the instance of the maternal uncle the wife filed a maintenance case under Section 488 of the Code of Criminal Procedure 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 the cruelty was found to be false. Under those circumstances, the Orissa High Court refused to grant the interim maintenance in favour of the wife because there was no prima facie case. Barman J. (as he then was) also indicated in his judgment that no decision was cited on behalf of the wife in support of the view contrary to that which was upheld in the decisions cited on behalf of the husband including the said Madras case
20. There is one authority which fully supports the view I have taken about the matter. That is an authority also of Madras High Court being the case of Muniammal v. P. M. Ranganatha Nayagar, : AIR1955Mad571 where Ramaswami, J. explained the case of : AIR1953Mad420 .
21. The learned Judge observed as follows;
'The law relating to the award of interim maintenance in cases of this nature has been settled by the recent Bench decision of this Court in : AIR1953Mad420 . Inasmuch as this decision does not appear to have been carefully understood always, it is worthwhile to examine the principles laid down in this decision.'
'The 'ratio decidendi' of this decisionis that interim maintenance should not begranted in suits for maintenance or partition where the status and the right of theclaimant is hotly contested, supported by avolume of 'prima facie' evidence, documentary or circumstantial. x x x
'This does not mean that whenever the contesting defendants merely deny the claim of the plaintiff and raise a so-called contest, interim reliefs can be denied which in fitting cases can be granted under Section 151, Civil P. C. In this very case if the dispute between Hajee Abdul Rahman and Tajunnissa Begum had been not about the status and right of Tajunnissa Begum but only about the quantum of maintenance or alleged prior payments, interim relief could certainly have been granted, providing suitable safeguards for the recovery of the money in case the claimant lost the suit.'
'This decision cannot be construed as an authority for refusing interim reliefs in all cases of maintenance, partition, etc. where vague and general allegations art made denying the plaintiff's claim '
XXXX X 'Therefore, I would have granted interim maintenance in the case holding that the decision in : AIR1953Mad420 is not an impediment in the circumstances of this case if otherwise the plaintiff had shown that she had a substantial 'prima facie' case end if her status and right to claim relief were not hotly contested with a wealth of details and 'prima facie' circumstantial evidence.'
22. In my opinion, the case of : AIR1953Mad420 does not decide that in each and every case for interim maintenance in which the Court passes an order the same would be without jurisdiction nor does it decide that in each and every such case Section 151 of the Code would not be applicable. In my opinion, the 'ratio decidendi' of the said Madras case of 1953 should be restricted to such cases where the right or status of the claimant are hotly contested.
23. In my opinion, as stated above in appropriate cases such as the case before me, the Court should exercise the power conferred by Section 151 of the Code of Civil Procedure in the interest of justice and to prevent the abuse of the process of the Court.
24. The effect of Section 18(1) and (2) of the Hindu Adoptions and Maintenance Act of 1956 is that the wife is entitled to maintenance all throughout during the subsistence of the marriage and that even her separate residence would not stand in the way until it is proved at the trial that she was not entitled to claim the exemption provided under Sub-section (2) thereof. The result is that if a prima facir case it made out, the Court can, at any stage of the proceeding, ask the husband to perform such obligations pending the, hearing of the suit acting under Section 151 of the Code of Civil Procedure.
25. Acting on the above findings, I have now to determine the quantum of interim maintenance. I have taken into consideration the fact that so long till about August 1966 the husband was voluntarily paying a sum of Rs. 100/- per month. I have also taken into consideration the averments made in the petition and in the affidavit herein and after paying due regard to the statutory provisions, in my opinion, a sum of Rs. 160/- per month should be payable by the husband to the wife by way of interim maintenance pending the decision of the suit and such sum should be paid in respect of the months starting from the month of August 1967 and thereafter every month and month by month until the decision of the suit.
26. I would also expedite the hearing of the suit by giving directions in the manner as indicated hereafter.
27. There is another point which has yet to be decided. Mr. Gupta points out that in the plaint filed herein the plaintiff has claimed a charge on the defendant's house at Dum Dum as also on the garden house at Garia, for payment of maintenance and for residence. The said properties are admittedly situate outside the jurisdiction of this Court. This suit being a suit for land because of the said claim for charge, this Court would have no jurisdiction to entertain or try this suit and as such no interim order could be passed in such a suit. Mr. Gupta has relied on the Supreme Court decision in the case of Nagubai Ammal v. B. Shama Rao, : 1SCR451 where at p. 597 the Supreme Court observed as follows:
'And he (counsel for the appellants) also conceded and quite rightly that when a suit is filed for maintenance and there is a prayer that it be charged on specified properties, it is a suit in which right to immovable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge.'
It if true that the point was not argued before the Supreme Court and was conceded by the learned counsel, but even the above observation is quite binding on this Court.
28. Finding this difficulty. Mr. Conchas prayed for an amendment of the plaint orally by deleting paragraph 19 and the said prayer (b) from the plaint I make an order granting leave to the plaintiff to amend prayer (b) as also paragraph 19 of the plaint by deleting the stamp and by changing the numbers of the subsequent paragraphs and of the subsequent prayers accordingly as also the necessary amendment in the verification portion thereof. The plaintiff is also given liberty to re-verify the plaint after such amendments are incorporated. The said amendments be incorporated on a signed copy of the minutes within 3 weeks from date and a copy of such amended plaint would be served on the defendant's solicitor within a work thereafter. Written statement is to be filed within 10 days from date of the service of the amended copy of the plaint. Cross orders for discovery would be completed within a week thereafter. The parties will file their respective affidavits of documents within a week thereafter. Inspection will take place forthwith thereafter and the suit is to appear in the appropriate prospective list on the re-opening of the Court after long vacation with liberty to the parties to apply for an early date. There will also be an order for injunction in terms of prayer (c) of the notice of motion. The amount of maintenance for the month of August 1967 would be payable on or before 25th September 1967 and the subsequent monthly payments would be payable on or before the 15th of the succeeding months for which the same would be due. In default of payment of any two monthly instalments the plaintiff would be at liberty to apply for appointment of a receiver over the properties which are covered by the order of injunction herein.
29. In my opinion, the applicant should get the costs from the respondent assessed at Rs. 250/-