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IN THE HIGH COURT OF BOMBAY
S.M. Jhunjhunuwala, J.
Harinder Kaur Narender Singh Dhanova others.... Plaintiffs
Versus
Narender Singh Rattansingh Dhanova... Defendant.
Notice of Motion No. 2240 of 1991 in Suit No. 3043 of 1991 and Notice of Motion No. 2346 of 1991 in Suit No. 3043 of 1991, decided on 27-1-1992.
Advocates appeared :
Rajiv Narsla with Nirasjas of Niranjan Co., for the plaintiffs.
M.M. Vashi, for the defendant.
FAMILY COURTS ACT, 1984.
Section 7 and 8-Drisdiction of High Court.
Held-Jurisdiction of High Court on original side not ousted by any of provisions contained in Act. High Court shall continue to exercise jurisdiction vested in it under Letters Patent and all other laws.
Section 18-Suit for maintenance-Pending-Interim maintenance granted -Held-Power to grant interim relief incidental and ancillary to power to grant final maintenance both under Sections 18 and 20-Court has power to award interim maintenance pending .suit for maintenance.
A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughter and his aged parents whether he is in possession of any property or not. The obligation to maintain these dependants 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 of 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.
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 the husband 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 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 bas also powers to grant those and such reliefs which are incidental to the main relief. In that view of the matter the court bas the power to award interim maintenance.
2. The 1st plaintiff is the wife of the defendant. The 2nd plaintiff and 3rd plaintiff are the minor son and minor daughter respectively of the 1st plaintiff. The marriage between the 1st plaintiff and the defendant was solemnised on 6th February, 1976 as per Sikh religious rites. The parties are governed by Hindu Law.
3. Two sons and two daughters are born out of this wed-lock. The 2nd plaintiff who is the son of about 14 years age, is known as Tinku. The 3rd plaintiff who is a daughter of about 13 years old, is known as Pinki. One Harjinder Singh is a minor son of about 11 years age, is also known as Minku. Gurucharan Kaur is a minor daughter of about 8 years old. She is also known as Dinki. The plaintiffs and the defendant as also the said Harjinder Singh and Gurucharan Kaur resided together from the year 1984 in Flat bearing Nos. 103 and 104 on the 1st floor of the building known as 'Silver Cascade' Mt. Mary Road, Bandra (West), Bombay 400 050. The said Flat No. 103 and the Garage are owned by the 1st plaintiff and same are standing in the name of the 1st plaintiff in 'Silver Cascade Co-op. Housing Society Ltd.' Bandra, Bombay : 400 050. The said Flat No. 104 stood in the name of the defendant and the same has been disposed of by the defendant. The said Flats bearing Nos. 103 and 104 have been matrimonial house of the 1st plaintiff and the defendant. The 2nd plaintiff is studying in the St. Elis School at Bandra. The 3rd plaintiff is studying in Durocelo Convent at Bandra. Both the 2nd and 3rd plaintiffs are in IX Standard. Prior to joining the aforesaid Schools, both the 2nd and the 3rd plaintiffs were studying at Panchagani as Boarders. The said Harjinder Singh and Gurucharan Kaur who were also studying at Panchagani, continue to study at New Era High School at Panchagani. Harjinder Singh is in VIth Standard and the said Gurucharan Kaur is in IIIrd Standard.
4. On 9th May, 1981, the defendant left the matrimonial home without the consent and knowledge of the 1st plaintiff and without any reasonable cause. It is the case of the 1st plaintiff that the defendant thereby deserted her. Since then, the defendant is not residing at the matrimonial home. According to the plaintiffs, the defendant while staying with the plaintiffs at the matrimonial home used methods and languages which hurt the 1st plaintiff mentally and physically. The general behaviour of the defendant qua the plaintiffs acquired standard which did not make it possible for the 1st plaintiff to have a normal married life with the defendant. Although the defendant was well looking after the plaintiffs and the other two children prior to leaving the matrimonial home, since May 1991, the defendant did not look after and maintain the plaintiffs and consequently, the suit has been filed by the plaintiffs for maintenance as prayed for in the plaint.
5. The defendant has denied his obligation to maintain the plaintiffs. Mr. Vashi, the learned Counsel appearing for the defendant, has submitted that the suit being for recovery of maintenance, under the provisions of the Family Courts Act, 1984, this Court has no jurisdiction. Mr. Vashi has further submitted that the issue pertaining to the jurisdiction of this Court has to be tried as a preliminary issue under the provisions of section 9-A of the Code of Civil Procedure, 1908. Mr. Vashi has further submitted that assuming this Court has the jurisdiction to try to entertain and try the suit, there being no provisions under section 18 of The Hindu Adoptions and Maintenance Act, 1956 (hereinafter for brevity's sake referred to as 'The said Act') for grant of interim maintenance, this Court cannot grant any interim relief to the plaintiffs in the Notices of Motion as prayed for or otherwise and as such, the
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