We have gone through the assertions of the husband in the petition which he filed for custody of his minor daughter which are reproduced in para 35 of the plaint and the attempted explanation given by the husband in para 40 of his affidavit-in-reply to the Notice of Motion. After reading the same, we concur with the observations of the learned Judge in his impugned order. It is also relevant to notice that even while the wife was staying with the husband in the matrimonial home, the husband, on his own showing, at times was giving her an amount of Rs. 2,000/- per month as pocket money. The revelations of para 35 of the plaint show that the husband is quite affluent. In the very nature of things, while passing such ad-interim orders, the Judge has to take some ad hoc view of the matter and it is also settled law that the Appellate Court will not interfere with the discretion used by the learned Judge in such matters. On the basis of the material on record and the facts and circumstances of the case, we do not find that the amount granted to the wife, inclusive of maintenance to a female child of two and-a-half years, of Rs. 7,500/- per month is, in any way, excessive.
Bombay High Court
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Bombay High Court
Atul Sashikant Mude vs Niranjana Atul Mude on 16 December, 1997
Equivalent citations: AIR 1998 Bom 264, 1998 (4) BomCR 83, II (1998) DMC 271
Bench: V Tipnis, M R Desai
1. This appeal, which was admitted by the 1st Court on 29th July 1997, was taken up for hearing as it was stated on behalf of the appellant that the order is such that it is impossible for him to comply with and will result into grave hardship to the appellant-husband.
2. The order impugned is an ad-interim order passed by the learned Single Judge in a Notice of Motion taken out in a suit filed by the wife under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the "Act") for maintenance for herself and her minor daughter. The learned Judge by the impugned order dated 17th July 1997 awarded an ad-interim maintenance of Rs. 7,500/- per month commencing from July 1997. The amount, the learned Judge clarified would include Rs. 1,600/- which the defendant-husband is prepared to pay for the maintenance of the child.
3. Mr. Naphade, learned Counsel appearing for the appellant-husband, read out the impugned order and raised three points. He, firstly, contended that the Court has no jurisdiction to pass an ad-interim order of the nature in a suit filed for maintenance under section 18 of the Act. Mr. Naphade contended that the provisions of section 151 of the Code of Civil Procedure cannot be pressed into service as, in his submission, those provisions do not confer any additional jurisdiction upon the Court and if there is any specific provision in the statute for the matter involved, then recourse cannot be had to the provisions of section 151. Mr. Naphade took us through the provisions of the Code of Civil Procedure and pointed out that section 75, etc. relate to incidental proceedings whereas the provisions of sections 94 and 95 of the Code of Civil Procedure are supplemental. In Mr. Naphade's submission, all these procedural provisions ultimately must come in aid of the suit and while passing any such orders, whether incidental or supplemental, the Court must always have advertence to the provisions of section 144 which provide for restitution. Mr. Naphade submitted that if, ultimately, the plaintiff fails in a suit for maintenance, then how will the defendant recover the amount which has been paid for a number of years and, therefore, this factor must be borne in mind by the Court while passing ad-interim or interim orders. Mr. Naphade, thereafter, took us through the provisions of sections 3(b) and 18 of the Act. In section 3(b), maintenance has been defined as under:-
"Maintenance" includes-
(i) in all cases, provisions for food, clothing, residence, education and medical attendance and treatment;
(ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage."
Mr. Naphade, therefore, submitted that so far as maintenance is concerned, this special statute is a complete Code in that behalf and whatever powers or jurisdiction the Court has must be found out from the provisions of the Act. Referring to the provisions of section 18, Mr. Naphade contended that there is no provision for any interim maintenance. In other words, Mr. Naphade contended that on proper construction and interpretation of the various provisions of the Act, it must be held that the Court has no jurisdiction to pass any ad-interim or interim order under section 18 and the only order which could be passed would be at the end of the trial which would be a final order or decree.
4. With reference to his various submissions and especially the first submission regarding jurisdiction Mr. Naphade relied upon several authorises of different courts, including this Court as well as the Apex Court, and submitted that these authorities support his interpretation, viz., that the Court does not have jurisdiction to pass interim orders under section 18 of the Act.
5. The second submission of Mr. Naphade was that even if there is such jurisdiction and power before any interim or ad-interim order is passed, one of the conditions as enumerated in section 18(2) must be shown to be existing. In that behalf, Mr. Naphade referred to certain previous correspondence between the parties as also paras 14, 16 and part of para 23 of the plaint as also some diary which is claimed to be the diary written by the defendant-wife, and contended that there is hardly any reference to the detailed allegations in the aforesaid paragraphs of the plaint, in any previous record such as correspondence or the aforesaid diary. Mr. Naphade contended that therefore, the alleged reasons given in the plaint are totally and patently false and do not inspire any confidence and none of the conditions under section 18(2) are shown to be existing .
6. Coming to the actual amount awarded by the learned Judge, Mr. Naphade contended that the entire material which was relied upon on behalf of the plaintiff-wife in that behalf is reflected in pare 35 of the plaint which material is, in fact, extracted from the petition filed by the husband for custody of the minor child. In that behalf, Mr. Naphade referred to the affidavit filed by the defendant-husband and especially to para 14 thereof in which, according to Mr. Naphade, there is explanation to each and every assertion made in para 35 of the plaint. Mr. Naphade especially relied upon the income-tax returns filed on behalf of the husband for about five years and contended that these returns at least at the time of ad-interim relief should form a reasonable basts for assessing the income and the capacity of the defendant-husband to pay maintenance. Considering the material on record, submitted Mr. Naphade, the order directing Rs. 7,500/- per month is harsh, improper and exorbitant.
7. Mr. Kathawalla, learned Counsel appearing for the respondent-wife, on the other hand, heavily relied upon the judgment of the learned Single Judge of this Court in Madhukar v. Bhima, report in A.I.R. 1983 Bombay 480, as also the decision of another learned Single Judge of this Court in Harinder Kaur v. Narendersingh, . He further contended that on proper reading of all other judgments, it is clear that there is no proposition which could be deduced from any other case cited by Mr. Naphade to the effect that under the provisions of section 18 of the Act, there is no jurisdiction in the Court to pass interim or ad-interim orders. Mr. Kathawalla further submitted that, in fact, the decision of Savant, J., in Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, ,
does not deal with the issue which is before this Court, inasmuch as the same issue never arose in the facts before Savant, J.
8. Mr. Kathawalla next contended that what is argued before this Court in appeal was not at all argued before the trial Court. He contended that what was argued before the trial Court is reflected in the order of the learned Judge which is impugned in the appeal and the only submission which was made was that the ground of cruelty, as is required, was not made out and, secondly, that the Court has no jurisdiction to pass interim order under the provisions of section 18 of the Act.
9. Mr. Kathawalla next submitted that so far as the amount of maintenance is concerned, the learned Judge was more than justified in relying upon para 35 of the plaint which reflects the general financial condition of the husband - Mr. Kathawalla submitted that, in any case, the learned Judge has to take some broad view on the basis of material on record and some workable order has to be passed and at this stage, all issues cannot be gone into nor any issue could be dealt with in detail as if it is a final disposal and final determination thereof. Mr. Kathawala, therefore, submitted that on the basis of facts and circumstances of this case, no fault could be found out with the order of the learned Judge and no interference is required by the Appeal Court.
10. Coming first to the question as to whether the Court has jurisdiction to pass ad-interim orders, it is necessary to refer to the provisions of section 18 of the Act which are as under :--
"18. Maintenance of wife---(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 forfeiting 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 Hindu by conversion to another religion."
A bare reading of the provisions shows that sub-section (1), subject to the provisions of the section, makes a Hindu wife, whether married before or after the commencement of the Act, entitled to be maintained by her husband during her lifetime. Thus the entitlement of a Hindu wife to be maintained by her husband during her life time is the most important provision of this section. Sub-section (2) of the Act makes it clear that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance in certain contigencies which are enumerated in Clauses (a) to (g). Sub-section (3) provides for certain contigencies disabling a Hindu wife for separate residence and maintenance from her husband, viz., if she is unchaste or ceases to be a Hindu by conversion to another religion.
11. Mr. Naphade relied upon the decision of the Madras High Court in Abdul Rahman v. Tajunnissa Begum, . In the
aforesaid case, the Madras High Court dealt with the power of the Court under the provisions of section 151 of the Code of Civil Procedure. It was observed 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 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. It was held that, therefore, in a suit for maintenance by the wife where the claim is hotly contested, an order for payment of interim maintenance is without jurisdiction.
12. The next case cited by Mr. Naphade is the decision of a Division Bench of the Andhra Pradesh High Court in G. Appanna v. G. Seethamma, . In a suit for maintenance, past and
future, against the husband, then wife filed an application purporting to be under section 151 of the Code of Civil Procedure and section 18 of the Act. The trial Judge overruled the objection regarding the maintainability of the petition and awarded interim maintenance. In revision, it was contended that the trial Court had no jurisdiction to grant interim maintenance in a case in which the very right to maintenance was in contest. It was submitted that neither under section 151 of the Code of Civil Procedure nor section 18 of the Act, the Court had jurisdiction to award interim maintenance. In para 4, after referring to the provisions of section 151 of the Code of Civil Procedure, it was observed that the Court cannot resort to the provisions of section 151 to encroach upon substantive rights of parties or, in an interlocutory application, upon matters which await adjudication in the suit. No order under section 151 of the Code of Civil Procedure can be made except 'in aid of the suit'. Such an order may be a step towards obtaining a final adjudication in the suit or it may be with a view to 'rendering the judgement effective, if obtained'. It is further observed that the inherent powers saved by section 151 are with respect to the procedure to be followed by the Court in deciding cause before it and these powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Code possessing all the essential powers to regulate its practice and procedure. It was observed in para 5 that an order awarding interim maintenance can neither be said to be a step towards final judgement nor intended to render such judgement effective. It cannot be said to be 'in aid of the suit' at all. In para 9 of the judgement, the Division Bench took note of the decision of the Calcutta High Court reported in Govri Gupta v. Tarani Gupta, as also the decision of the Calcutta High Court
reported in Govri Gupta v. Tarani Gupta, and observed that section 18 merely clothes, a Hindu wife with the right to be maintained by her husband and when the wife enforces, her right to maintenance by instituting an appropriate action, the "defendant may have several defences and all such defences and 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 the date of the suit or even earlier. There is no question of the husband taking advantage of the filing of the suit and stopping maintaining the wife, since if the wife establishes her claim, she will be entitled to recover arrears of maintenance also. The Division Bench, thereafter, categorically held that section 18 does not authorise the award of interim maintenance pending decision on the claim to maintenance in contest in the suit. The Division Bench observed that the Court has no power unless statute expressly confers such a power on it.
13. Mr. Naphade also relied upon the decision of the Andhra Pradesh High Court in A. Simhachalam v. A. Papamma, , and para 6 thereof. However, we do not think that the said decision has much relevance to the issue before us.
14. The next decision referred to is the decision of the learned Single Judge of this Court inMadhukar v. Bhima, reported in A.I.R. 1983 Bombay 480. The issue plainly and clearly arose before the learned Single Judge. The learned Judge, after referring to the decision of the Division Bench of the Andhra Pradesh High Court, expressed his view that he is unable to accept the view of the Andhra Pradesh High Court to effect that though there is a power in the Court under section 18 as well as section 20 to grant maintenance to a wife, and to the children from the father-husband, such a power does not exist pending the suit. The learned Judge held that under section 18 of the Act, especially subjection (1) thereof, an absolute right is conferred upon a Hindu wife to maintenance by her husband during her life time. The right is controlled and subject only to sub-section (3). Sub-section (2) confers a right to live separately from the husband upon a Hindu-wife only under certain circumstances. The learned Judge held that the right to maintenance even in the household of a husband where the husband neglects or does not provide maintenance to his wife is conferred by subsection (1) of section 18 and it is not necessary for the operation of sub-section (1) of section 18 that wife must be also entitled to live separately in the circumstances provided under sub-section (2). The learned Judge held that the liability to maintain is spelt out by section 18(1) and is absolute and is not subject to any conditions excepting so far as may be provided by sub-section (3). In para 9, the learned Judge has observed that maintenance is a matter of right which accrues and occurs from day to day and from time to time. It is a continuous right. It cannot be said that the right to be maintained is granted or can be granted and arises only upon passing of the decree. It is a right which arises from day to day and is entitled to be adjudicated upon, satisfied and sanctioned from time to time and from day to day. The learned Judge further observed that whatever limitations there may be upon the wife's right to maintenance under section 18, are not to be found under section 20 i.e. regarding the right of a minor child. In para 12 of the judgment, the learned Judge held that in a situation which was obtainable before him, section 151 of the Code of Civil Procedure can easily be called in aid. The learned Judge, in that behalf, referred to the decision of the Calcutta High Court . Ultimately, the learned Judge held
that the right to grant interim relief flows from the substantive right in sections 18 and 20 themselves and if not, section 151, can be called in aid to translate that right into practice and actual relief. The power to grant such a relief is incidental and ancillary to the power to grant final maintenance both under sections 18 and 20.
15. Reference was also made to the decision of the learned Single Judge of this Court in Harinder Kaur v. Narendersingh, reported in 1993 Mah.L.J. 851. In the aforesaid case also, the issue directly arose for consideration. The learned Judge considered the issues in paras 9 and 10 of the judgement. The decision of the Andhra Pradesh High Court reported in Gorivelli Appanna v. Gorivelli Seethamma, was relied upon by the learned Counsel appearing before the learned Judge. In pare 10, the learned Judge has held as under:-
"10. A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents whether he possesses any property or not. The obligation to maintain these dependents is personal in character and arises from the very existence of the relationship between the parties. A right of wife for maintenance is an incident of the status of estate of matrimony and a Hindu is under a legal obligation to maintain his wife. If in a suit for maintenance which is contested, the wife and the minor children are to wait indefinitely for receipt of maintenance amount till the suit is finally decided and disposed of, it will not only cause irreparable harm and injury to the wife and minor children but will virtually make it impossible for them to survive. Right to recover maintenance arises from day to day and is entitled to be adjudicated upon, satisfied and sanctioned from time to time and from day to day. In the case of Madhukar Akhand v. Bhima Akhand and others, , this Court while dissenting
from the case of Gorivelli Appanna v. Gorivelli Sethamma (supra), has held that the right to grant interim relief flows from the substantive right in sections 18 and 20 of the said Act themselves and if not, section 151 of the said Code can be called in aid to translate that right into practice and actual relief. The power to grant such a relief is incidental and ancillary to the power to grant final maintenance both under sections 18 and 20 of the said Act. It is further held that the right to maintenance even in the household of a husband where (sic who) neglects or does not provide maintenance to his wife is conferred by section 18(1) of the said Act. It is not necessary for the operation of the said section 18(1) that the wife must be also entitled to live separately in the circumstances provided under sub-section (2). The liability to maintain is spelt out by section 18(1) and is absolute and is not subject to any conditions excepting so far as may be provided by sub-section (3). Where the principal power or main right to grant relief is conferred upon the Court or upon an authority, such Court or authority has also powers to grant those and such reliefs which are incidental to the main relief. In that view of the matter, I hold that the Court has the powers to award interim maintenance."
16. In our opinion, the decisions on the issue by the learned Single Judge of this Court reported in A.I.R. 1983 Bombay 480 and another learned Single Judge of this Court reported in 1993 Mah. L.J. 851 appear to lay down the correct position in law. We find it difficult to accept the decision of the Andhra Pradesh High Court . We have already referred to the reasoning of the Andhra Pradesh High Court in para 9 of the aforesaid judgement. The reason given for not reading any power to grant interlocutory reliefs under section 18 are that 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 and 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 the date of the suit or even earlier, as the case may be. The wife, if established her claim, will be entitled to recover arrears of maintenance also. With respect, we find it difficult to accept this reasoning. In our opinion, the question whether the Court has jurisdiction to pass interim order can never be dependent on the possibility of the defences to the suit. What is more important is that the Act, viz., the Hindu Adoptions and Maintenance Act, 1956 avowedly is for codifying the law relating to maintenance amongst Hindus. It is extremely relevant to notice that the inclusive definition of "maintenance" states that "maintenance" includes (i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; and (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage. In our opinion, these aspects of maintenance clearly contemplate grant of the same when the same is needed. That the wife, if she succeeds, will be entitled to arrears is no consolation. For example, there may be urgent need of medical attendance and treatment which surely cannot await the decision of the suit after several years. For ought one knows, in the absence of proper medical attendance and treatment, the plaintiff may not survive to obtain the fruits of her decree by way of arrears of maintenance. In our opinion, the inclusive definition of maintenance is also a pointer to indicate that in the very nature of things, if the absolute right of maintenance granted by the Legislature to a Hindu wife is to be effective, then the Court must necessarily have the power to pass ad-interim and interim orders. Otherwise, the very purpose and object of the Act is likely, to be defeated. Similar is the case in respect of section 20 which provides for maintenance of children and aged parents. Now if an unmarried daughter of a marriageable age requires reasonable expenses of and incidental to her marriage, surely she cannot be asked to wait until the conclusion of the trial. In our opinion, taking into consideration the scheme of the Act and the definition of "maintenance", we find that it is implicit that though there is no express provision in section 18 or for that matter in section 19 or 20, the power and jurisdiction to pass ad-interim and interim order can legitimately and justifiably read into those provisions. Otherwise, as stated earlier, the very object of the Act is likely to be defeated. For the aforesaid reasons, we are of the view that the Court hearing the suit under section 18 clearly has power and competence to pass proper and required interim and ad interim orders.
17. Mr. Naphade contended that the decision of the learned Single Judge of this Court in Vinod Kumar Kejriwal v. Usha Vinod Kejriwal, holds to the contrary. It is relevant to notice that the issue before us never arose directly or even indirectly in the aforesaid case. The learned Judge was concerned with the interpretation of section 24 of the Hindu Marriage Act and especially the phrase "proceedings under the Act". An argument was made before the learned Judge that section 24 of the Hindu Marriage Act is hit by section 4(b) of the Hindu Adoptions and Maintenance Act and the learned Judge held that the provisions under section 24 are not inconsistent with the provisions of section 18 of the Hindu Adoptions and Maintenance Act. While considering the aforesaid submission in para 29 of the aforesaid judgement, the learned Judge held that there is no provision in the Act for granting maintenance pendente lite and expenses of proceedings as provided for in section 24 of the Hindu Marriage Act, 1955 and, therefore, he did not find anything in the scheme of the provisions of section 24 of the Hindu Marriage Act which is inconsistent with the provisions of the Hindu Adoptions and Maintenance Act so as to attract the bar of clause (b) of section 4 of the Hindu Adoptions and Maintenance Act. The learned Judge found no inconsistency between the provisions of section 24 of the Hindu Marriage Act and the provisions of section 18 of the Hindu Adoptions and Maintenance Act. In our opinion, by no stretch of imagination, these observations can be read to mean that the learned Judge has held that there is no power or competence in the Court to pass any interim order under section 18 of the Act.
18. Mr. Naphade next contended that the decision of the Apex Court in Chand Dhawan v. Jawaharlal Dhawan, , and
especially the observations in para 23 to 25 and 27 thereof support his contention. After having gone through the decision, we are unable to accept the submission of the learned Counsel. It is relevant to notice that the Apex Court, in the aforesaid case, was mainly concerned with the interpretation of the word "decree" as used in section 25 of the Hindu Marriage Act, 1956 and the Apex Court held that it refers to any decree provided for under section 9 to 14 affecting or disrupting the marital status but does not include any order dismissing the petition under any of those sections thereby sustaining the marital status. It is in this context that the learned Judges observed that in case of dismissal of the petition of the husband under any of the provisions of section 9 to 14, no alimony can be granted to the wife petitioning under section 25. However, maintenance can be claimed by her under section 18(1) of the Act or under section 125 of the Code of Criminal Procedure. It was held that the Court cannot grant relief of maintenance simpliciter obtainable under the Act in proceedings under section 25 when the decree does not affect or disrupt the marital status. It is in this context that the Apex Court observed that the relief under one statute cannot be claimed in proceedings under another statute. The discussion in para 23 shows the distinction between the provisions of the Hindu Marriage Act regarding maintenance and the provisions of the Hindu Adoptions and Maintenance Act. It is observed that section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her lifetime. Sub-section (2) of section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehaviours enumerated therein or on account of his being in one of objectionable conditions as mentioned therein. Therefore, while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is on the pendency of a litigation of the kind envisaged under sections 9 to 14 of the Hindu Marriage Act and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted, the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the Court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application in that behalf by a party entitled to relief. The Supreme Court observed that thus the whole exercise is within the gamut of a diseased or a broken marriage. It is in this context that the Court held that when by Court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Act. Thus, in our opinion, what the Supreme Court has held is that insofar as the provisions of the Hindu Marriage Act and section 25 thereof in particular, is concerned, the power to grant maintenance is only in the event when the marriage is affected or dirupted and the marital status is affected or disrupted; otherwise the right has to be under section 18(1). It is, in this context, that the Apex Court observed that the provisions of another statute cannot be read while deciding a matter under the provisions of a distinct statute. Mr. Naphade also relied upon the observations of the Apex Court in para 27 that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the Court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then, not the Court but the Legislature is to blame for enacting a damp squib statute. In our opinion, looking to the object of the Act and the definition of the word "maintenance" and the provisions of section 18, we are of the opinion that it is capable of wide construction so as to salvage the remedial intendment. In that respect, we hold that the Court while dealing with a suit under section 18 has jurisdiction to pass required and proper interim and ad-interim orders.
19. Mr. Naphade also relied upon the decision of the Apex Court in Rohini Kumari v. Narendra Singh, . In the
aforesaid case, the Supreme Court was concerned with the interpretation of section 10(1)(a) of the Hindu Marriage Act, 1955 and especially the essential elements of desertion. In the aforesaid context, the Apex Court held that section 10 of the Hindu Adoptions and Maintenance Act are quite distinct and one cannot be said to control the other and it is quite obvious that section 18 of the Hindu Adoptions and Maintenance Act does not amend or abrogate the provisions of section 10 of the Hindu Marriage Act. In this context only the Apex Court has observed in para 10 that it is well-known that when a particular branch of law is codified, it is intended and the object, essentially is that on any matter specifically dealt with by that law, it should be sought for in the codified enactment alone when any question arises relating to that matter. With reference to the Hindu Marriage Act, it was observed that the Act not only amends but also codifies the law of marriage and it has made fundamental and material changes in the prior law. Section 4 of the Act gives overriding effect to its provisions. Therefore, unless in any other enactment there is a provision which abrogates any provisions of the Act or repeals it expressly or by necessary implication, the provisions of the Act alone will be applicable to matters dealt with or covered by the same. The Apex Court, in fact, at the end of the aforesaid judgement, has clearly observed as under:-
"All that we are concerned with, in the present case, is whether the provisions of section 18(2) of the Maintenance Act can affect the matters provided for by section 10 of the Act. It is quite obvious that section 18 of the Maintenance Act does not amend or abrogate the provisions of section 10 of the Act which alone must be looked at for the purpose of disposing, of the appeal before us."
20. Mr. Naphade relied upon the decision of the Supreme Court in Padam Sen v. State of U.P., , wherein the Apex
Court has observed that the Court has no inherent powers under section 151 to appoint a Commissioner to seize account books in the possession of the plaintiff, upon an application by the defendant that he has apprehension that they would be tampered with. It was further observed that powers saved by section 151 are not powers over substantive rights which a litigant possesses. Party has full rights over his account books. The Court cannot seize them forciby. It can summon them and if not produced, it can penalise the party and draw adverse presumption against him. As we are holding that the power to pass ad-interim and interim orders must be read in the provisions of section 18, in view of the very scheme of the Act, this judgment on the provision of section 151, in our opinion, is not relevant to the issue.
21. Mr. Naphade has also brought to our notice the various provisions regarding alimony pendente lite or maintenance, pendente lite under the provisions of the Indian Divorce Act, the Hindu Marriage Act as also provisions of similar nature such as the Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954. However, in our opinion, these provisions are specifically in respect of the proceedings taken under the various Acts and are also made subject to several conditions expressly made therein. It is difficult for us to accept the submission of Mr. Naphade that inasmuch as no express provision is made in section 18 of the Hindu Adoptions and Maintenance Act to pass interim orders, the Court has no power to grant interim maintenance. In our opinion, in this behalf, the discussion in the decision of the Apex Court is extremely relevant as it emphasises the distinction between such provisions and the provisions of section 18 of the Act. We find it difficult to hold that only because there is absence of any express provision, we should go to the extent of holding that the legislature intended that the Court should not have any such power. Absence of express provision enabling the Court to pass interim orders cannot be read as prohibition to pass such orders.
22. In view of the aforesaid discussion, we do not find any merit in the first contention of Mr. Naphade and we hold that the Court, in a suit filed under section 18 of the Hindu Adoptions and Maintenance Act, has jurisdiction and power to pass appropriate interim and ad interim orders.
23. At this juncture, we will also refer to another submission of Mr. Naphade, viz., that such power should not be read because the Court must always have advertence to the provisions of section 144 of the Code of Civil Procedure and Mr. Naphade posed the question as to what happens if, ultimately, the wife fails in her suit. We are not at all impressed by this submission. On the contrary, not passing such an order, in our opinion, is not only more disastrous but may defeat the entire object and purpose of the Act. Maintenance, as stated, is the support to life having provision for food, clothing, residence, education, medical attendance and treatment and shelter which, when denied, are required immediately to be granted and cannot await the duration of a long trial. It is relevant to notice, in that behalf, that the provisions of section 18(1) give absolute entitlement to a Hindu wife to be maintained by her husband during her life time. If this has to be ensured, urgent ad-interim and interim orders as required under the circumstances of the case will have to be passed.
24. This brings us to the second submission of Mr. Naphade that even if such power is there, before the Court passes an order in a case where the wife is living separately, the existence of conditions enumerated in sub-section (2) of section 18 has to be shown. There cannot be a quarrel with this proposition. However, once we hold that there is power in the Court to pass interim and ad interim orders, whether there is existence of such conditions at such a stage cannot be determined finally and, ultimately, it will have to be determined on the prima facie view of the matter. So far as the facts of the case before us are concerned, it is extremely relevant to notice that in the affidavit-in-support of the Motion, the plaintiff-wife has stated that for brevity's sake, she repeats, maintains and confirms what is stated in the plaint as if the same were set out therein in extenso. It is further stated that in the facts and circumstances set out in the plaint, she has been driven out of her own home by the defendant on 30th May 1996 and from the said date, the defendant has failed and neglected to make provisions for her and the minor daughter in any manner whatsoever. If one looks at the plaint, we find that apart from the alleged demands of dowry and the allegation that the husband is having some clandestine relationship with some other woman, there are innumerable instances and other allegations in the lengthy plaint which allegations and instances, if proved, would amount to cruelty and also show that the wife was almost driven out of the house. We are mentioning these facts only for the limited purpose of showing that it is not as if there is no material on record which would enable the learned Judge to come to a prima facie satisfaction that conditions required for living separately as contemplated under the provisions of section 18(2) are satisfied. It is relevant to notice that under sub-section (2), the Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance inter alia if he is guilty of desertion or of wilfully neglecting her and 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 or if there is any other cause justifying her living separately. The allegations in the plaint and the affirmation thereof in the affidavit-in-support of the Motion, in our opinion, make out several instances which, if proved by evidence, would amount to cruelty or it would justify the wife living separately. Ultimately, after evidence, the learned Judge can always come to his own conclusions. However, at this stage, what is required is only prima facie satisfaction of the learned Judge. On the basis of material on record, we are of the view that such prima facie satisfaction can legitimately and justifiably be reached in the present case.
25. That takes us to the last of the submissions, viz., that the amount awarded is exorbitant and not proper. In that behalf, the learned Judge in the impugned order in para 4 has referred to the assertions made by the husband himself in his petition filed for custody of the minor child. The learned Judge has also referred to the fact that the husband in the present application has filed a detailed affidavit wherein he seeks to water-down the averments made by him in his application for custody by stating that his income is not as alleged by the wife. The learned Judge has significantly observed that although the husband has asserted that he is heavily indebted, no particulars of any borrowings have been given. What is relied upon is the income-tax returns. The learned Judge found that the husband has been approbating and reprobating and the two affidavits are diametrically opposite to each other.
26. We have gone through the assertions of the husband in the petition which he filed for custody of his minor daughter which are reproduced in para 35 of the plaint and the attempted explanation given by the husband in para 40 of his affidavit-in-reply to the Notice of Motion. After reading the same, we concur with the observations of the learned Judge in his impugned order. It is also relevant to notice that even while the wife was staying with the husband in the matrimonial home, the husband, on his own showing, at times was giving her an amount of Rs. 2,000/- per month as pocket money. The revelations of para 35 of the plaint show that the husband is quite affluent. In the very nature of things, while passing such ad-interim orders, the Judge has to take some ad hoc view of the matter and it is also settled law that the Appellate Court will not interfere with the discretion used by the learned Judge in such matters. On the basis of the material on record and the facts and circumstances of the case, we do not find that the amount granted to the wife, inclusive of maintenance to a female child of two and-a-half years, of Rs. 7,500/- per month is, in any way, excessive.
27. In the result, we find no merit in the appeal and the appeal is dismissed with costs. We quantify Rs. 1,500/- as costs of this appeal to be paid by the appellant to the respondent.
28. Appeal dismissed.
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