The above mentioned Full Bench judgment of Orissa High Court is also quoted with approval in para 36, 37 and 38. At the end of para 38, it has been stated that inherent power of a Court, as is well known, can be denied only by way of statutory interdiction. There does not exist any provision either in Civil Procedure Code, or in the Act, disbelieving the Court from granting interim maintenance". In para 45, it is also held that independent of inherent powers under Section 151 of Civil Procedure Code, even under the provisions of Act itself, by necessary implication, power has been conferred in the Court to grant interim maintenance to wife and minor children where circumstances so warrant.
13. Thus, the Full Bench judgments above clearly show that in a suit cognizable under Section 9 of Civil Procedure Code, the power to grant interim maintenance is available to Civil Court. The same power is also available to Family Court. Here, though the parties are Mohammedan, the maintainability of proceedings is not in dispute and hence till the question of entitlement to final relief remains pending for adjudication, Case before the Family Court is not for recovery of maintenance and, it has jurisdiction and power to award interim maintenance to the respondent - wife during restitution proceedings. The Family Court has correctly appreciated the law on the point.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Writ Petition No. 3232 of 2010
Decided On: 12.08.2010
Mohammed Anis-Ul-Haq Vs. Asma Anjum
Hon'ble Judges/Coram:
B.P. Dharmadhikari, J.
Citation: MANU/MH/0908/2010
1. By this writ petition filed under Article 227 of Constitution of India, the petitioner - husband has challenged the order dated 01.10.2009 passed by Family Court No. 4, Nagpur in Petition No. A-889/2008 below Exh. 16, directing him to pay interim maintenance of Rs. 2,500/- per month to the respondent - wife from 15.07.2009. The matter was initially presented as Criminal Revision Application under Section 397 read with Section 482 of Criminal Procedure Code and on 04.03.2010, it has been converted into a Writ Petition under Article 227 of Constitution of India.
2. Looking to the nature of the controversy, Shri Qureshi, Learned Counsel for the petitioner - husband and Shri Shams, Learned Counsel for the respondent - wife, requested that the matter should be taken up for final hearing. Accordingly, the parties have been heard by making rule returnable forthwith.
3. The marriage between the parties was solemnized at Nagpur as per Islamic Law on 22.12.2006. The respondent - wife has filed Petition No. A-889/2008 before Family Court No. 4, Nagpur under Section 281 of Mohammedan Law for restitution of conjugal rights. The petitioner in his reply raised preliminary objection and contended that he has pronounced Talaq on 09.04.2009 in front of two witnesses and hence the parties are no longer husband and wife. The petition for restitution of conjugal rights was, therefore, not maintainable. In those proceedings, wife filed application for grant of interim maintenance and husband filed his reply to the same, raising same objection as preliminary objection. The Judge, Family Court No. 4, Nagpur, after hearing parties, has found that the husband was required to prove factum of divorce and mere assertion in written statement and reply cannot defeat wife's claim for interim maintenance. Accordingly interim maintenance of Rs. 2,500/- per month is granted to Respondent wife on 01.10.2009 w.e.f. 15.07.2009.
4. Shri Qureshi, Learned Counsel for the petitioner - husband has contended that in a suit for restitution of conjugal rights as filed, wife is not entitled to claim interim maintenance. He has relied upon the judgment of this Court in the case of Shabbir v. Shakilabanu reported at MANU/MH/0685/1984 : 1986 Mh. L.J. 759, to substantiate his contention. He further states that situation could have been otherwise had the suit filed been for maintenance or then had wife filed proceedings under Section 125 of Criminal Procedure Code. He has also relied upon the judgment in the case of Abdul Rahman v. Tajunnissa Begum reported at AIR 1953 Madras 420, to urge that Civil Court cannot in exercise of inherent jurisdiction grant such relief. His contention is, such a relief is possible in present circumstances only after final adjudication of the controversy. He has invited attention to Section 281 as contained in principles of Mohammedan Law by Mulla and also to B.R. Verma's Commentaries on Mohammedan Law, particularly its Section 30. His contention is, such suit for restitution of conjugal rights needs to be decided according to principles of Mohammedan law and not on the basis of principles of justice, equity and good conscious but under statutory obligations.
5. Shri Shams, Learned Counsel for the respondent - wife has contended that the above referred judgment of Learned Single Judge of this Court cannot be said to be laying down correct law in view of the subsequent judgments holding the field. He has invited attention to judgment of the Hon'ble Apex Court in the case of Savitri w/o Govind Singh Rawat v. Govind Singh Rawat reported at MANU/SC/0104/1985 : AIR 1986 SC 984, to urge that every Court is deemed to possess necessary powers and hence a power to award interim maintenance is available to Court. For the same purpose, the Division Bench judgment in the case of Rajesh Nanaji Morghade v. Darshana Rajesh Morghade reported at MANU/MH/0200/1999 : 1999 Mh. L.J. 327, is also relied upon to urge that power to grant such interim maintenance has been found to be a incidental power to grant main relief. Sangeeta Piyush Raj v. Piyush Chaturbhuj Raj reported at MANU/MH/0249/1998 : 1998 Mh. L.J. 301, another Division Bench ruling is also relied upon by the Learned Counsel to show how principle of necessary intendment is applied in such matters. According to the Learned Counsel, the finding that suit for restitution of conjugal rights as filed by the wife is maintainable, has not been assailed or argued to be erroneous and hence use of discretion by the trial Court in the matter cannot be said to be either erroneous or perverse.
6. Family Court No. 4 at Nagpur has considered the ruling on which Shri Qureshi, Learned Counsel, has placed reliance. It has also considered Full Bench Judgment in the case of Dadgu v. Rahimbi reported at MANU/MH/0187/2002 : II (2002) DMC 315 and then recorded a finding that mere assertion of pronouncing of Talaq is not sufficient. This finding has not been even whispered to be bad before me. Thus, it is apparent that petition for restitution of conjugal rights as filed by the respondent - wife is prima facie maintainable and in that background Family Court has proceeded to examine her entitlement.
7. The judgment in Shabbir v. Shakilabanu, (supra) notes that the suit was filed by the husband for restitution of conjugal rights and in it application for interim maintenance was moved by wife. Article 278 of Mulla has then been looked into to note that there is no vested or substantive right of maintenance and wife can get the same only on determination of stands like neglect or refusal of husband to maintain her without lawful cause. It is noticed that even in that case, she is not entitled for any decree for her past maintenance, unless the claim is based on specific agreement. In para 14, it has been noticed that recourse to Section 151 of Civil Procedure Code by the wife was misplaced as that section does not confer a substantive jurisdiction upon Court. In para 15, the question as noticed is whether in aid of lis before the Civil Court, it was necessary for the Civil Court in the interest of justice to exercise power of granting interim maintenance under Section 151 of CPC. As the nature of suit for restitution of conjugal rights is found different from the suit for maintenance which a Mohammedan is entitled to file under Mohammedan Law, and because of availability of remedy to her under Section 125 of Criminal Procedure Code, it has been concluded by the Learned Single Judge there that Civil Court had no jurisdiction to grant any interim relief by way of interim maintenance.
8. The judgment is delivered in proceedings which were initiated for restitution of conjugal rights by the husband and thus husband there was trying to procure an order of cohabitation against his wife. In this background, Article 278 of Mohammedan Law (Mulla) has been looked into. In present matter as already noticed above, the wife is trying to procure such order of co-habitation against her husband thereby alleging neglect or refusal by him. The judgment, therefore, by itself is not decisive of controversy before me.
9. In Savitri w/o Govind Singh Rawat v. Govind Singh Rawat, (supra), the application was filed by a wife under Section 125 of Criminal Procedure Code, for maintenance against her husband and she also sought an interim order. In this background, the Hon'ble Apex Court has found that every Court has got power to possess all such powers by necessary intendment as are necessary to make its orders effective. The principal is embodied in maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non protest". Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorized in express terms is also done, then that something else can be procured and this power is supplied by necessary intendment. The Hon'ble Apex Court has also stated that such a construction may not be always admissible, however, where it advances the object of the Legislation and a contrary view is likely to result in great hardship to the wife, who has no means to subsist, such an implied power needs to be presumed. This judgment is followed in Rajesh Nanaji Morghade v. Darshana Rajesh Morghade, (supra), where the Learned Single Judge has found that in the matter of maintenance, Court which has got power to grant main relief, has also power to grant interim relief. Division Bench of this Court in Sangeeta Piyush Raj v. Piyush Chaturbhuj Raj, (supra), has expressly mentioned this Supreme Court judgment in Savitri W/o Govind Singh Rawat v. Govind Singh Rawat, (supra),and held that application for interim maintenance can be made to any Court and Court can exercise its inherent power to award it. It is to be noted that all these judgments are between parties who are governed by Hindu Customs and Law.
10. Abdul Rahman v. Tajunnissa Begum, (supra) is the judgment of Division Bench of the Hon'ble Madras High Court and both parties to it are Mohammedan. The Division Bench has found that there is no power in Court to grant interim relief which properly can be granted only by a decree after adjudication of points in controversy. There, in a suit for maintenance filed by wife, her entitlement was hotly contested and hence an order for payment of interim maintenance was held without jurisdiction. The Learned Single Judge had ordered interim maintenance to be paid and that order was set aside by the Division Bench. The various precedence considered there show that the basic issue was whether inherent powers of the Court could be exercised for issuing such direction. Hon. Division Bench answered it in negative. This adjudication is not influenced by personal law of the parties.
11. This judgment of Madras High Court is considered by Full Bench of Orissa High Court in its judgment in the case of Khandal Penthi v. Hulash Dei reported at MANU/OR/0036/1989 : AIR 1989 Orissa 137. The suit there was filed by wife for maintenance and she also sought interim maintenance. The matrimonial relationship was denied by husband and the Hon'ble Full Bench found that it cannot be the ground to refuse interim maintenance. The judgment of Madras High Court in Abdul Rahman v. Tajunnissa Begum (supra) is noted there in para 4 but then it has been found that grant of interim maintenance under Section 151 of Civil Procedure Code, is possible. Ii is important to note that in para 6, the Full Bench also noticed that suit before it was not under provisions of the Hindu Marriage Act, 1955, but a suit of Civil nature and hence under Section 9 of Civil Procedure Code. The prayer for interim maintenance therein was not one under Section 24 of the Hindu Marriage Act which provides for pendente lite maintenance. Hon. Full Bench also states that no suit is contemplated under Section 18 of the Hindu Adoptions and Maintenance Act. The right of a Hindu woman to maintenance declared and recognized by Section 18 of that Act was found to be an enforceable right which can be enforced in a Civil Suit. Suit in the instant matter is also under Section 9 of Civil Procedure Code read with Section 281 of Mohammedan Law and there is no argument of absence of enforceable right. On the contrary, before the Family Court fact of severance of relationship was pleaded as an excuse to discharge of obligation to maintain.
12. P. Srinivasa Rao v. P. Indira reported at MANU/AP/0771/2001 : AIR 2002 A.P. 130, is another Full Bench judgment which has considered above mentioned judgment of Madras High Court. It has been held that interim maintenance can be granted by Family Court under Section 151 of Civil Procedure Code, to wife and children in a suit for maintenance under Hindu Adoptions and Maintenance Act, 1956, filed against the husband. It is noticed by the Hon'ble Full Bench that said view of Madras High Court was distinguished by Calcutta High Court in Gouri Gupta v. Tarani Gupta reported at MANU/WB/0059/1968 : AIR 1968 Cal. 305, and this view was affirmed by Division Bench of Calcutta High Court in the case of Tarini Gupta v. Gouri Gupta reported at AIR 1969 Cal. 567. The above mentioned Full Bench judgment of Orissa High Court is also quoted with approval in para 36, 37 and 38. At the end of para 38, it has been stated that inherent power of a Court, as is well known, can be denied only by way of statutory interdiction. There does not exist any provision either in Civil Procedure Code, or in the Act, disbelieving the Court from granting interim maintenance". In para 45, it is also held that independent of inherent powers under Section 151 of Civil Procedure Code, even under the provisions of Act itself, by necessary implication, power has been conferred in the Court to grant interim maintenance to wife and minor children where circumstances so warrant.
13. Thus, the Full Bench judgments above clearly show that in a suit cognizable under Section 9 of Civil Procedure Code, the power to grant interim maintenance is available to Civil Court. The same power is also available to Family Court. Here, though the parties are Mohammedan, the maintainability of proceedings is not in dispute and hence till the question of entitlement to final relief remains pending for adjudication, Case before the Family Court is not for recovery of maintenance and, it has jurisdiction and power to award interim maintenance to the respondent - wife during restitution proceedings. The Family Court has correctly appreciated the law on the point.
14. I, therefore, do not find any case made out warranting interference in writ jurisdiction. Writ Petition is, therefore, dismissed. Rule discharged. However, in the facts and circumstances of the case, there shall be no order as to costs.
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