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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
A.S. CHANDURKAR, J.
Sreenivasagopalan Ananthakrishna – Petitioner
Versus
Meenakshi Tripurari – Respondent
Writ Petition No.4897 of 2014
Decided On : 31-07-2015
Guardian and Wards Act, 1890 - Sections 7 and 12 Grant of interim maintenance. Although interim maintenance had already been awarded in proceeding under D.V. Act, yet grant of interim maintenance under Section 12 of Act justified. Interim maintenance was being paid in proceedings under the Domestic Violence Act, 2005 the same need not have been directed in the present proceedings also cannot be accepted. While determining the amount of interim maintenance, the Court has taken said aspect into consideration and has thereafter awarded a sum of Rs. 5000/- each per month to the minors. In the facts of the present case and prima facie, considering the standard of living of the parties, it cannot be said that said amount is in excess of the requirements. Similarly, as regards payment of Rs. 33,00,000/- by the petitioner as alleged, the same is a disputed question which cannot be gone into at this stage. After the parties lead evidence before the Family Court, said aspect can be duly considered while passing final orders. The decision relied upon in the case of Alok Kumar Jain (supra) is clearly distinguishable on facts.
Guardian and Wards Act, 1890 - Sections 7 and 12 Grant of interim maintenance. Since welfare of minor is paramount consideration hence power to grant interim maintenance implied in Section 12(1) of Act 1890. Provisions of Section 12(1) of Guardians and Wards Act, 1890, will have to be construed in a manner that would protect the person of the minor and if for such purpose grant of interim maintenance is warranted, the Court would be empowered in that regard. The welfare of the minor being the paramount consideration, the power to grant interim maintenance will have to be read in aforesaid provisions. Moreover, during pendency of proceedings when it is brought to the notice of the Court that the welfare of the minor requires to be taken care of by directing one party to pay an amount of interim maintenance, such power can surely be exercised in the facts of the case.
Merely because by amending the said Act a provision for payment of maintenance is sought to be made, the same does not mean that the Courts had no power prior to such amendment to award interim maintenance. In fact, by the proposed amendment, the power tog rant interim maintenance is sought to be specifically granted in place of such implied power that is available with the Court. Considering the object of the said Act and the settled position of law that welfare of the minor is the paramount consideration, the power to grant interim maintenance has to be read in the powers conferred by Section 12(1) of the said Act.
Under Section 10(1) of the Family Courts Act, 1984, the Family Court is deemed to be a Civil Court and provisions of the Code of Civil Procedure, 1908 are applicable to the proceedings before it. Therefore, in an appropriate case before it, the Family Court in exercise of its inherent powers under Section 151 of the Code can even otherwise direct payment of interim maintenance to the minor child in proceedings under Section 7 of the Guardian and Wards Act. AIR 1986 All 314; 2012 (6) All MR 438 (SC).
1. Rule. Heard finally with the consent of the learned Counsel for the parties.
2. An interim order passed by the Family Court, Nagpur directing the petitioner to pay maintenance pendente lite in proceedings filed under Section 7 of the Guardian and Wards Act, 1890 (for short the said Act) is under challenge on the ground that there is no jurisdiction conferred under the said Act to award interim maintenance. Another order granting partial access to the petitioner is also under challenge.
3. The petitioner and the respondent were married on 15.12.2002 and out of said wedlock, they have two children. The relations between the petitioner and the respondent having become strained, they started residing separately. The present petitioner has filed proceedings for divorce which are pending. With a view to get a declaration that the petitioner was the guardian of the minor children, he filed proceedings under Section 7 of the said Act. Prayer for grant of custody was also made.
4. During pendency of aforesaid proceedings, the respondent and the two children filed an application before the Family Court praying that the petitioner be directed to pay a sum of Rs.15,000/- per month to the respondent as maintenance and a sum of Rs.10,000/- each to the minor children towards the maintenance. It was stated that the respondent who was looking after the children had to incur various expenses including education of the children, and hence, prayer for grant of maintenance was made.
5. The petitioner filed his reply opposing said application and took the stand that an amount of Rs.33,00,000/- had already been paid by him to the respondent and that an order of interim maintenance had already been passed in proceedings under the Domestic Violence Act. The jurisdiction of the Family Court to grant interim maintenance in the proceedings was also challenged. By the impugned order, the learned Judge of the Family Court granted an amount of Rs.5000/- each per month to the children towards the maintenance. The prayer of the respondent for grant of maintenance was rejected.
6. In so far as the prayer for grant of visitation rights to the petitioner is concerned, the learned Judge of the Family Court passed an interim order granting fortnightly access to the petitioner with gradual increase in the period of access. These orders are under challenge in the present writ petition.
7. Shri S.V. Sirpurkar, the learned Counsel appearing for the petitioner submitted that there was no jurisdiction with the Family Court to grant interim maintenance in proceedings under Section 7 of the said Act. According to him, the power to make certain interlocutory orders have been conferred by Section 12 of the said Act and they are only in relation to production of the minor child and interim protection of the person or property of the minor. He, therefore, submitted that in the absence of any express grant of power in the matter of paying interim maintenance, the Family Court could not have directed interim maintenance to be paid. In this regard, he sought to draw support from the recommendations of the Law Commission of India and the proposed amendment to the said Act. He submitted that an amendment as proposed by inserting Section 19G in the said Act was with regard to granting prayer to the Court to pass appropriate orders for the maintenance of children. He, therefore, submitted that such provisions not being present in the said Act, it was clear that by amending the same, the legislature intended to grant such power to the Courts. He, therefore, submitted that the order directing payment of interim maintenance was itself without jurisdiction.
8. Without prejudice, it was submitted that the petitioner had already paid a sum of Rs.33,00,000/- to the respondent voluntarily and unless the said amount was duly accounted for, she was not entitled for grant of any interim maintenance even as regards minor children. In that regard, he placed reliance on the judgment of the
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