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1984 Supreme(Bom) 245
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Dhabe H.W., J.
Shabbir Ahamed Sheikh Ibrahim .... Applicant.
Versus
Shakilabanu Shabbir Ahamed.... Non-applicant.
Civil Revision Application No. 727 of 1984, decided on 24-8-1984.
Advocates appeared :
S. Hussain, for applicant.
Dharmadhikari, for non-applicant.
A wife governed by Mahomedan Law is not entitled to interim maintenance during the pendency of a suit for restitution of conjugal rights filed by her husband.
Headnote:
MATRIMONIAL LAW - RESTITUTION OF CONJUGAL RIGHTS - INTERIM MAINTENANCE - MAHOMEDAN LAW - NO RIGHT TO INTERIM MAINTENANCE DURING PENDENCY OF SUIT FOR RESTITUTION OF CONJUGAL RIGHTS - INHERENT POWERS OF CIVIL COURT UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE CANNOT BE INVOKED TO GRANT INTERIM MAINTENANCE.
Fact of the Case:
In a suit for restitution of conjugal rights filed by the husband, the wife claimed interim maintenance during the pendency of the suit. The trial court granted the wife interim maintenance, and the husband challenged the order in revision.
Finding of the Court:
The court held that under Mahomedan Law, the wife has no right to interim maintenance during the pendency of a suit for restitution of conjugal rights. The court further held that the inherent powers of the civil court under section 151 of the Code of Civil Procedure cannot be invoked to grant interim maintenance in such a case.
Issues: Whether a wife governed by Mahomedan Law is entitled to interim maintenance during the pendency of a suit for restitution of conjugal rights filed by her husband.
Ratio Decidendi: The court relied on the following principles in reaching its decision: * Under Mahomedan Law, the marriage is a contract and not a sacrament. * The wife has a right to sue for maintenance only if her husband neglects or refuses to maintain her without any lawful cause. * The wife is not entitled to a decree for past maintenance unless the claim is based on a specific agreement. * The inherent powers of the civil court under section 151 of the Code of Civil Procedure cannot be invoked to grant interim maintenance in a suit for restitution of conjugal rights.
Final Decision: The court allowed the revision petition and set aside the trial court's order granting interim maintenance to the wife.
2. The learned trial Court by its order dated 3-3-1984 directed the plaintiff/husband to pay an interim maintenance allowance of Rs. 125/- per month to his defendant/wife during the pendency of the suit. It is not in dispute that the defendant/wife has also filed an application under section 125 of the Code of Criminal Procedure claiming maintenance from her husband. Since the plaintiff/husband is aggrieved by the offer of the trial Court granting interim maintenance to his defendant/wife he has preferred the instant revision against the same in this Court.
3. The learned Counsel for the applicant has urged that there is no right of an interim maintenance provided under the Mahomedan Law unlike section 24 of the Hindu Marriage Act. He has further urged that there is no power to the Civil Court to grant interim maintenance under any of the provisions of the Code including its inherent powers under section 161 of the Code of Civil Procedure. It is, however, urged on behalf of the non-applicant/wife that under its inherent powers under section 151 of the Code of Civil Procedure the Civil Court has jurisdiction to grant interim maintenance during the pendency of the suit in the interest of justice.
4. In support of the rival contention the parties have relied upon certain decisions which, however, admittedly do not directly deal with the issue in this case. Before examining the decisions relied upon by the parties, it would be useful to examine the rights of the wife under the Mahomedan Law in regard to maintenance. It is not in dispute that under Mahomedan Law the marriage is a contract and not a sacrament. Articles 277 and 278 of Mulla's Principles on Mahomedan Law (18th Ed. edited by M. Hidayatullah) deal with the principles of Mohamedan Law relating to maintenance of wives. The above articles are reproduced below for the sake of convenience:-
“277. Husband's duty to maintain his wife. - The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of promp (section 290) dower, or she leaves the husband's house on account of his cruelty.
278. Order for maintenance. - If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1908, section 488, in which case the Court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees.”
It is clear from reading Article 277 that the husband is bound to maintain his wife so long as he is faithful to him and obeys his reasonable orders. As per Article 278 if the husband neglects or refuses to maintain his wife without any lawful came, the wife can sue him for maintenance but she is not entitled to a decree for past maintenance unless the claim is based on a specific agreement. It is also open to her to apply for maintenance under the old section 488 and the present section 125 of the Code of Criminal Procedure. It is clear from reading Article 278 that during the subsistence of marriage it is open to the wife to sue for maintenance if her husband neglects or refuses to maintain her. Although it is not relevant in this case, it is clear from Article 279 that after divorce the wife
