1. This appeal is from the order dated 5th September 1967 passed by R.M. Datta. J.
2. The order was passed on an interlocutory application filed by the plaintiff for interim maintenance. The plaintiff filed a suit and claimed Rs. 800/- per month for maintenance and residence and also claimed maintenance and educational expenses of the daughter.
3. The learned Judge made an order directing the defendant-husband to pay Rs. 160/- per month to the wife by was of interim maintenance pending the decision of the suit and further directed that the sum was to be paid from the month of August, 1967 and thereafter month by month until trial and decision in the suit
4. Counsel for the appellant contended that the Court had no jurisdiction to order interim maintenance, In aid of that contention reliance was placed on the decision in Mahomed Abdul Rahman v. Taiunnissa Begum. : AIR1953Mad420 . Reliance was also placed on the decision of the Supreme Court in Padam Sen v. State of Uttar Pradesh, 0065/1960 : 1961CriLJ322 .
5. The contentions on behalf of the appellant were that there was no express statutory provision under which interim maintenance could be granted.
6. The decision of the Supreme Court in Padam Sen's case, 0065/1960 : 1961CriLJ322 was that the Court had no inherent power under section 151 of the Code of Civil Procedure to appoint a Commissioner to seize account books in the possession of the plaintiff upon an application by the defendant that he had apprehension that they would be tampered with. The Supreme Court said that the powers saved by section 151 were not powers over substantive sights which a litigant possessed. A person had full right over his account books and the Court could not seize them forcibly. It could summon them. In the Supreme Court case. Gendamal sued Mithan Lal for money on the basis of promissory notes. The defendant apprehended that the plaintiff would fabricate the books of account in respect of payment and they applied for seizure It is obvious that the right to seize the books was not within the scope of the suit.
7. The Bench decision of the Madras High Court in Abdul Rehman's case, : AIR1953Mad420 was that the Civil Procedure Code conferred certain powers on the Court to grant certain reliefs in interim proceedings, as for example, power to issue injunction; an attachment before judgment or appointment of Receiver and that apart from such powers there was no inherent jurisdiction in regard to grant of interim relief which should be granted by the decree after determination of the points in controversy. On this reasoning it was said that where the claim was contested an order for payment of interim maintenance was without jurisdiction The Court might refuse to make an order for payment of interim maintenance in a disputed claim If a claim is denied that would not in my opinion 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 think to say that the Court declines to make an order in a case where facts are disputed and quite another thins to say that the Court has no jurisdiction to make an order because the claim is contested,
8. In the recent unreported Bench decision in Nemi Chand Jain v. Sm Lila Jain dated 18 July, 1967 being Appeal From Original Order No. 241 of 1966. (since reported in AIR 196P Cal 405) this Madras decision was considered and the opinion was expressed that the jurisdiction of the Court was attracted by filing a suit and the Court had power to make interlocutory orders in aid of a suit and denial of status would not deprive the Court of its Jurisdiction to make proper order in the facts and circumstances of a case Counsel for the appellant did not contest the proposition that denial of a claim would not take away the jurisdiction of the Court
9. The Code of Civil Procedure has made specific provisions with regard to grant of injunction, attachment before Judgment and appointment of Receiver. The Code is not exhaustive with regard to interlocutory orders which can be asked for in aid of a suit.
10. Counsel for the appellant contended that there were decisions of the Mysore High Court in Mulimani Sanna Basavarajappa v. Basavannappa, AIR 1959 Mvs 152 and of the Orissa High Court in Venkataratnam v. Kakinda Kamala, : AIR1960Ori157 to the effect that the Court had no jurisdiction to grant interim maintenance The Mysore decision is to the effect that where in a suit for partition the minor plaintiff claimed to be son of the defendant and the defendant denied that the plaintiff was the son and contested his right to claim partition, the court could not under Section 151 of the Code of Civil Procedure, grant the plaintiff interim relief. The Mysore decision followed the Madras Bench decision in Abdul Rahman's case. : AIR1953Mad420 . With respect I am unable to agree with the views expressed in the aforesaid Madras and Mvsore decisions for reasons indicated earlier. I am of opinion that denial of a claim or disputes with regard to a claim or controversies with regard to a claim will not have the effect of depriving the Court from passing order in proper cases. In the case of Muniammal v. P.M. Ranganatha. : AIR1955Mad571 it was held that if a plaintiff could establish a prime facie case the Court could grant interim maintenance. With respect I agree with this view.
11. The Orissa decision was that where the wife brought a suit for recovery of separate maintenance from the husband on account of alleged cruelty of the husband on her the wife could claim separate interim maintenance only if she could establish a prima facie case of cruelty. The Orissa decision was, however, on the facts of the case, that in the absence of a prima facie case the wife was not entitled to any interim maintenance. The Orissa decision does not support the appellant that the Court has no jurisdiction. On the contrary the observation is that in the absence of a prima facie case she is not entitled to interim maintenance; a proposition which need not be stressed.
12. Mr. Goho, counsel for the respondent, relied on the observation of Mahmood J, reported in (1882) ILR 5 All 163 at p. 172 (FB) that every procedure is permitted unless it is forbidden. The reason why this observation has attained classic importance is that procedure is designed to subserve the purpose of justice and the trial of the suit.
13. It was contended by counsel for the appellant that the provisions contained in Hindu Adoptions & Maintenanct Act, 1956 did not contain any provision for grant of interim maintenance and, therefore the Court has no jurisdiction to grant interim maintenance under section 18 of the Hindu Adoptions & Maintenance Act, 1956. It will appear first, that subject to the provisions of that section a Hindu wife, whether married before or after the commencement of the Act shall be entitled to be maintained by her husband during her life time. Secondly a Hindu wife may live separately from her husband without forfeiting her claim to maintenance in the various instances enumerated in sub-section (2) of Section 18. Those instances broadly stated are where the husband is guilty of desertion; where the husband has treated the wife with cruelty where the husband is suffering from virulent form of leprosy where the husband has any other wife living; where the husband keeps a concubine; where the husband has ceased to be Hindu by conversion to another religion; where there is any other cause justifying her living separately. Thirdly, 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.
14. It was said by counsel for the appellant that the instances enumerated in the sub-sections are the only cases where the wife could live separately from the husband without forfeiting her claim and in the present case the wife was said to be not entitled to claim any maintenance as she lived separately from the husband. In the present case there are allegations that the wife has been living separately from the husband because the husband has been treating the wife with cruelty, because the husband is keeping a concubine in the same house in which his wife lived or resided and that there are other causes justifying her living separately, namely, that the wife has been treated with great physical violence and cruelty. The essence of the plaintiff's case is that she is entitled to maintenance and that she is also entitled to live separately. That is the case that the plaintiff has made the plaintiff's prima facie case calls for an answer. The defendant has given an answer. Prima facie the plaintiff's case has overwhelming evidentiary value.
15. Mr. Goho rightly contended that if there was a right there was a remedy. Ubi jusubi remedium The right was said to flow from Section 18 of the Hindu Adoptions & Maintenance Act. If there is a general right under the statute to claim maintenance in my opinion it follows that also during the pendency of the suit she has a right to claim maintenance. There is a right to claim maintenance because she is the wife. Secondly, the right to claim maintenance is being asserted in the suit and thirdly, there is a right to claim maintenance till the suit is determined and followed by decree.
16. Counsel for the appellant also contended that it would appear from statutes in relation to marriage that there were provisions for grant of alimony pendente lite, but there was no such provision in the Hindu Adoptions & Maintenance Act and therefore there was no power to grant interim maintenance. I am unable to accept the contention that the absence of any provision for the grant of maintenance pendente lite under Section 18 of the Act has the effect of depriving the Court of ordering interim maintenance. The statutes in relation to Marriage Act may be specially designed to cover cases of alimony pendente lite but there is no reason why the general provisions for grant of maintenance should stand in the way of interim maintenance as a legal or statutory bar.
17. Counsel for the respondent contended that section 4 of the Hindu Adoptions & Maintenance Act, 1956 enacted that any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act would cease to have effect with respect to any matter for which provision was made and any other law in force immediately before the commencement of the Act would cease to apply to Hindus in so far as it was inconsistent with any of the provisions contained in the Act. It was said that the overriding effect of the Act on Hindu law was there and the general Hindu law which entitled the wife to claim maintenance had not been abrogated. Counsel for the respondent relied on the decision reported in : AIR1963Mad283 and on the observation appearing at pages 390, 391 (of ILR Mad) = (at p. 286 of AIR) to the effect that the combined result of Sections 4 and 28 of the Hindu Adoptions and Maintenance Act was that the provisions contained in Section 39 of the Transfer of Property Act were preserved. Under Section 28 of the Hindu Adoptions and Maintenance Act it will appear that where a dependent has a right to receive maintenance out of an estate and such estate or any part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of the right. Section 39 of the Transfer of Property Act is to the effect that where a third person has a right to receive maintenance or a provision for advancement or marriage from the profits of immovable property and such immovable property is transferred, the right may be enforced against the transferee if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right nor against such property in his hands. The Madras decision reported in : AIR1963Mad283 is that the provisions of section 39 of the Transfer of Property Act are not abrogated. The reason why counsel for the respondent relied on the Madras decision is in support of the contention that there is general right of maintenance under Hindu law.
18. It will appear in Mulla's Hindu Law, 13th Edition at page 544 sequiter that a wife is entitled to be maintained by her husband where he possesses property or not. When a man marries a girl, he undertakes the obligation of maintaining her. The maintenance of the wife by her husband is a matter of personal obligation arising from the very existence of the relationship and quite independent of the possession by the husband of any property ancestral or self-acquired. In other words, the general Hindu Law is that the wife has a right to be maintained by the husband. There is statutory recognition of this right in the 1956 Act. The result is that there is a right to be maintained both under the Hindu Law and under the Hindu Adoptions & Maintenance Act, 1956. As I have indicated earlier if there is a right and if that right is invoked in a suit, it follows that pending determination of the suit the Court could make interlocutory orders in aid of a suit.
19. Counsel for the appellant contended that the only power that the Court would have to make an order for maintenance was under Section 151 of the Code of Civil Procedure. The power of the Court to grant maintenance is attracted with reference to the Hindu Adoptions & Maintenance Act. 1956 as also the general provision in Hindu Law. The power of the Court does not flow from Section 151 of the Code of Civil Procedure. Section 151 confers power on the Court to make order in relation to administration of justice and the Court has always inherent power to make such orders. It was said by counsel for the appellant that the order of grant of interim maintenance would have the effect of conferring a substantive right of maintenance. The order is not made under Section 151 of the Code of Civil Procedure. The order is made in a suit with reference to the provisions of Hindu Law and provisions of the 1956 statute. The order does not confer any right of maintenance.
20. In the unreported decision in A.F.O.O No. 241 of 1966 D/- 18-7-1967 (since reported in : AIR1968Cal405 ) we expressed the opinion that if there was a prima facie case and by prima facie case was meant as Lord Evershed M. R. said in Auten v. Rayner. (1958) 3 All ER 566 at p. 568, a case which called for an answer, the Court could pass orders in a prima facie case. Such an order does not confer any substantive right. Such an order is in aid of a suit. It was said by counsel for the appellant that if moneys were paid and if eventually it transpired that moneys were not to be paid, the husband would be deprived of the amount spent. The rights would be fashioned fully in the suit. There might be in appropriate cases order upon the wife to refund moneys if she were not entitled to be paid interim maintenance. Such payment of money does not amount to substantive right, These are interim payments in the suit. There is no determination of right until the decision in the suit.
21. Counsel for the appellant contended that grant of interim maintenance would amount to grant of entire relief in the suit I am unable to accept that contention. The relief asked for in the suit has yet to be determined and decided. If there is a prima facie case and if the Court is of opinion that the plaintiff is entitled to interim relief the plaintiff may be given such relief. That is not deciding the whole case. In these cases the Court is bound to arrive at a conclusion as to whether any interlocutory order will be made or not. There has to be a prima facie opinion. Interlocutory opinions do not bind the trial Court.
22. Counsel for the respondent, is, in my opinion, right in his contention that the Court has jurisdiction to grant Interim maintenance. The power of the Court is derived from the provisions of the statute; the power of the Court flows from the general provisions of Hindu Law; the power of the Court is invoked by the Institution of a suit; the power of the Court is exercised by finding that there is a prima facie case which entitles the plaintiff to interim relief.
23. Counsel for the appellant next contended that if the Court had jurisdiction the Court should not have made an order in the facts of the case. The allegation? are that the husband has been living with his niece as concubine. The husband made counter allegations against the wife; but no particulars were given. The husband has gone to the extent of suggesting that the daughter of the wife is not legitimate. The allegations are of a grave nature but they are devoid of particulars. The prima facie case that the plaintiff wife has made against the husband appears to be that the husband has been living with the niece. The husband's allegations do not prima facie appear to be of substance.
24. As to the amount it was said by counsel for the appellant that the husband had lost income and that Rs. 160 was a large sum. Considering the fact that the wife and the daughter are to be maintained, Rs. 160 cannot by any stretch of imagination be said to be excessive.
25. Counsel for the respondent contended that the order was not appealable It was said that it was not an interlocutory order within the provision of Section 104 and Order 43 Rule I of the Code of Civil Procedure. Secondly it was said that it was not a judgment within the meaning of Clause 15 of the Letters Patent. Reliance was placed on the decision of the Judicial Committee in Rangoon Botatoung Co.. Ltd. v. Collector. Rangoon. (1912) 39 Ind App 197 (PC) that right of an appeal is a creature of statute and that there is no right in the present case.
26. Counsel for the appellant, on the other hand, relied on the Bench decision of this Court in Shorab Merwanji Modi v. Mansata Film Distributors. : AIR1957Cal727 that where a question of the jurisdiction of the Court to entertain or proceed with a suit or proceeding is involved and a decision on that question is given such a decision would affect the merits of the controversy between the parties.
27. In the present case we do not desire to express any opinion on the rival contentions as to whether an appeal lies or not. In the unreported decision in A. F. O. O. No. 241 of 1966 D/- 18-7-1967 (Since reported in : AIR1968Cal405 ) no point was taken as to whether an appeal lay or not. In the other decisions to which reference has been made by counsel no question arose as to whether an appeal lay or not. In the present case in view of our conclusions that the judgment and order of the learned Judge of the trial Court should not be disturbed, it is not necessary to go into the question as to whether an appeal lies. The appeal is, therefore, dismissed. The appellant will pay costs to the respondent. Costs of the application for stay of the order which were costs in the appeal are also to be paid by the appellant to the respondent
S. K. Mukherjea, J.
28. I agree.