Mumbai High Court
Sangeeta Piyush Raj vs Piyush Chaturbhuj Raj on 13/1/1998
ORDER
M.B. Shah, C.J.
1. After considering the various decisions cited at the hearing of the
Notice of Motion, by order dated 17th January, 1997, Variava, J.,
referred to the Division Bench the following two questions for
determination:–
“1. Whether in proceedings under section 18 of the Hindu Adoptions
and Maintenance Act, the Court can grant interim maintenance?
2. Whether if matrimonial proceedings are pending between the
parties then an application for interim maintenance must be made
only to the Family Court under the provisions of section 24 of the
Hindu Marriage Act?”
2. With regard to the first question, after considering the various
decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R
Desai, JJ.) by judgment and order dated (16th and 17th December, 1997
in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit
filed under section 18 of the Hindu Adoptions and Maintenance Act,
1956, the Court has jurisdiction and power to pass appropriate interim
and ad-interim orders. We agree with the said conclusion.
3. Further, it is to be noted that the Hindu Adoptions and Maintenance
Act, 1956 codifies the law relating to adoptions and maintenance among
Hindus. It only declares and codifies the law with regard to adoptions
and maintenance by Hindus. The basis of such obligation to maintain
wives, widowed daughter-in-law, children and aged parents may be a
pious obligation of Hindus. The provisions relating to maintenance are
in Chapter III. Section 18 deals with maintenance of a wife during her
life time under certain circumstances, as provided in sub-section (2)
thereof. Section 19 provides for maintenance of a widowed
daughter-in-law to the extent that she is unable to maintain herself
out of her own earnings or other property by her father-in-law.
Similarly, section 20 provides for maintenance of his or her legitimate
or illegitimate children and his or her aged or infirm parents. The
liability to pay maintenance to children is on the father or mother.
Similarly, liability to pay maintenance to infirm parents is on the son
or the daughter. Section 22 further provides that the heirs of a
deceased Hindu are bound to maintain the defendants of the deceased (as
defined in section 21) out of the estate inherited by them from the
deceased. Section 23 provides for the objective criteria for
determining the amount of maintenance. Further, the requirement is that
no person shall be entitled to claim maintenance if she or he has
ceased to be a Hindu by conversion to any other religion (section 24).
Section 25 empowers the alteration of the amount of maintenance on
change of circumstances justifying such alteration. Further, the
proceedings initiated for getting maintenance would be under the Civil
Procedure Code. Hence, there is no reason why inherent jurisdiction of
the Court cannot be exercised for providing interim maintenance. If a
deserted wife, widowed daughter-in-law, minor children and aged parents
are not provided with interim maintenance, it would cause lot of
hardship for a long period. The entire purpose of the enactment would
be defeated because of the proverbial delays in disposal of cases
resulting in grave hardship to the applicants who may have no means to
survive until final decree is passed. There is no provision under the
Hindu Adoptions and Maintenance Act or under the Civil Procedure Code
that interim maintenance cannot be granted; there is no provision under
the said Act which would meet the necessities of the case in question.
Therefore, for doing real and substantial justice, Court can exercise
power under section 151 of the Civil Procedure Code for grant of
interim maintenance. It would also prevent abuse of the process of the
Court.
4. Even in proceedings under section 125 of the Code of Criminal
Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J.
411, the Court held as under :–
“Having regard to the nature of the jurisdiction exercised by a
Magistrate under section 125 of the Code, we feel that the said
provisions should be interpreted as conferring power by necessary
implication on the Magistrate to pass an order directing a person
against whom an application is made under it to pay a reasonable sum
by way of interim maintenance, subject to the other conditions
referred to, pending final disposal of the application. In taking
this view we have also taken note of the provisions of section
7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed
recently by Parliament proposing to transfer the jurisdiction
exercisable by Magistrates under section 125 of the Code to the
Family Courts constituted under the said Act.”
For arriving at the above conclusion, the Court has observed that every
Court must be deemed to possess by necessary intendment all such powers
as are necessary to make its orders effective. The Court further
observed that whenever anything is required to be done by law and it is
found impossible to do that thing unless something not authorised in
express terms be also done, then that something else will be supplied
by necessary intendment. In a civil suit filed for maintenance on the
basis of the law applicable under the Hindu Adoptions and Maintenance
Act, such power is required to be exercised. In our view, there is no
reason not to apply the ratio laid down by the Supreme Court in
Savitri’s case (supra) to the question involved in the present case.
5. Re: The Second Question :
In our view, even if matrimonial proceedings are pending between the
parties, it is not the requirement that the application for interim
maintenance must be made only to the Family Court under the provisions
of section 24 of the Hindu Marriage Act. Once we arrive at the
conclusion that an application under section 18 of the Hindu Adoptions
and Maintenance Act is maintainable during the pendency of proceedings
under the Hindu Marriage Act, then, obviously, the result would be that
the application (or interim maintenance could be filed before the Court
dealing with the right arising under provisions of section 18 of the
Hindu Adoptions and Maintenance Act.
6. With regard to the provisions of section 18 of the Hindu Adoptions
and Maintenance Act and provisions of the Hindu Marriage Act, the Apex
Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3)
Supreme Court Cases 4061, has held that, without affection 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 Hindu Adoptions and Maintenance
Act. She may also be entitled to relief under section 125 of the Code
of Criminal Procedure; but this is an alternative measure. The Court
clarified that, in a petition under the Hindu Marriage Act, the Court
is empowered to grant interim maintenance; but, in those cases where
the marital status is to be affected or disrupted, then the Court would
pass orders for maintenance. In other cases, the Hindu Adoptions and
Maintenance Act would be applicable. Hence, in our view, even if
matrimonial proceedings are pending between the parties in the Family
Court, it is not necessary that for getting interim maintenance, an
application must be made to the said Court under the provisions of
section 24 of the Hindu Marriage Act.
7. We, however, make it clear that, once the interim maintenance is
granted either under section 24 of the Hindu Marriage Act or under
section 18 of the Hindu Adoptions and Maintenance Act, then, there is
no question of entertaining the application under the other Act. This
would avoid multiplicity of proceedings, because the criteria for
awarding maintenance under both the provisions would be the same.
8. Reference stands disposed of accordingly.