1997 Supreme(Bom) 692

IN THE HIGH COURT OF BOMBAY
V.P. Tipnis Mrs. R.P. Desai, JJ.
Atul Sashikant Mude ..... Appellant.
Versus
Niranjana Atul Mude .... Respondent.
Appeal No. 714 of 1997 in Notice of Motion No... of 1997 In Suit No. 2290 of 1997, decided on 16/17-12-1997.
Advocates appeared :
Shekhar Naphade with Y.V. Divekar i/b M.K. Nesari, for the appellant.
S.J. Kathawalla i/b. A.S. Khushrushahi, for the respondent.

Headnote:Section 18-Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2-Quantum of interim maintenance-Appellate Court would not interfere under its discretionary powers when trial Judge has observed that the husband at many occasions has himself shown how affluent he is, he cannot now reprobate to what he has said at trial stage.- That the amount awarded is exorbitant and not proper. In that behalf, the 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 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 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.

       Court has 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.

       Section 18-Grant of interim maintenance--Court has power to pass ad-interim and interim orders as definition of maintenance and provisions of Section 18 are capable of very exhaustive interpretation, provisions of the Act have to be liberally construed, whenever so required.-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 Sections 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 Sections 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 mis-behaviours enumerated therein or on account of his being is 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 section 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 aild 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, 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 disrupted and the marital status is affected or disrupted; otherwise the right has to be under Section 18(1). It is, in the 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.

       The various provisions regarding alimony pendente liteor 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 reported in 1993 (3) SCC 406 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.

       Sections 18, 19 and 20 read - Section 3(b)-Maintenance suit -Scope of-Pendency of application -Grant of maintenance-Ad-interim and interim maintenance-Ground of-Legal-Emphasis on relevancy of passing order-Discussed,- The question whether the Court has jurisdiction to pass interim order can never be dependant on the possibility of the defence 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 amongs Hindus. It is extremely relevant to notice that the inclusive definition of maintenance states that maintenance includes (i) in all cases, provision for food, clothingl residence, education and medical attendance and treatment, and (ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage. 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. 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 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 in the case in respect of Section 20 which provides for maintenance of children and aged parents. Taking into consideration the scheme of the Act and the definition of Maintenance 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 dinnertime and interim order can legitimate and justifiably read into those provisions.