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HIGH COURT OF CALCUTTA
R. M. Datta
GOURI GUPTA CHAUDHURY - Appellant
Versus
TARANI GUPTA CHAUDHURY - Respondent
Suit 465 Of 1967
Decided On : SEPTEMBER 5, 1967
MAINTENANCE - INTERIM MAINTENANCE - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 18 - JURISDICTION - SECTION 151 OF THE CODE OF CIVIL PROCEDURE - POWER TO GRANT INTERIM MAINTENANCE - WIFE'S RIGHT TO MAINTENANCE - HUSBAND'S OBLIGATION TO MAINTAIN WIFE - CONDITIONS FOR SEPARATE RESIDENCE - FACTORS FOR CONSIDERING INTERIM MAINTENANCE - JURISDICTION OF COURT - AMENDMENT OF PLAINT - CHARGE ON IMMOVABLE PROPERTY - SUIT FOR LAND - JURISDICTION OF COURT.
Fact of the Case:
The wife filed a suit for maintenance and residence under the Hindu Adoptions and Maintenance Act, 1956, claiming Rs. 800/- per month for maintenance and residence, maintenance and education expenses of her daughter, and a declaration of charge on the immovable properties for the due payment of the decretal amount. The husband admitted the marriage but alleged cruelty by the wife and her disloyalty, and stopped paying maintenance and educational expenses for the daughter. The wife filed an interlocutory application for payment of interim maintenance.
Finding of the Court:
The court held that under Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956, the husband is bound to maintain the wife during the subsistence of the marriage, and under Sub-section (2), the wife's right to live separately from the husband would not stand in the way of her right to get maintenance if certain conditions are shown to exist. The court found that the husband had been voluntarily paying a sum of Rs. 100/- per month for the wife's maintenance until August 1966, despite her separate residence, which prima facie showed that there was a good justification for the wife's residing separately from the husband. The court also held that the power under Section 151 of the Code of Civil Procedure should be invoked to grant interim maintenance in appropriate cases, such as the case before it, to prevent the abuse of the process of the Court and to ensure that the wife is not left without means of maintenance during the pendency of the suit.
Issues: 1. Whether the court has jurisdiction to grant interim maintenance in a suit for maintenance under the Hindu Adoptions and Maintenance Act, 1956, in the absence of a specific provision for interim maintenance in the Act? 2. Whether the wife is entitled to interim maintenance despite her separate residence from the husband? 3. Whether the court can invoke Section 151 of the Code of Civil Procedure to grant interim maintenance in a suit for maintenance under the Hindu Adoptions and Maintenance Act, 1956?
Ratio Decidendi: 1. The court has jurisdiction to grant interim maintenance in a suit for maintenance under the Hindu Adoptions and Maintenance Act, 1956, by invoking the powers conferred under Section 151 of the Code of Civil Procedure, in appropriate cases where the husband has property and income sufficient to maintain the wife but fails to perform his marital obligation. 2. The wife is entitled to interim maintenance despite her separate residence from the husband, if such separate residence was necessary on account of the grounds mentioned under Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956. 3. The court can invoke Section 151 of the Code of Civil Procedure to grant interim maintenance in a suit for maintenance under the Hindu Adoptions and Maintenance Act, 1956, in appropriate cases, to prevent the abuse of the process of the Court and to ensure that the wife is not left without means of maintenance during the pendency of the suit.
Final Decision: The court granted an order for payment of interim maintenance to the wife at the rate of Rs. 160/- per month, starting from August 1967 and continuing until the decision of the suit. The court also allowed the wife to amend the plaint by deleting the prayer for a charge on the immovable properties, as the suit would then be a suit for land and the court would have no jurisdiction to entertain or try it.
( 1 ) IN this application the main point for decision is whether pending the decree being passed in the suit for maintenance an order for payment of interim maintenance can be made in an interlocutory application. The point is of much substance because under the Hindu Adoptions and Maintenance Act (No. 78 of 1956) there is no specific provision for payment of interim maintenance as is the case with some other statutes viz. the Indian Divorce Act of 1869. the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956.
( 2 ) IN the suit filed herein the wife has claimed Rs. 800/- per month for maintenance and residence. She has also claimed maintenance and education expenses of her daughter Tapati. She has also prayed for a declaration of charge on the immovable properties for the due payment of the decretal amount when passed.
( 3 ) THE marriage is admitted. The daughter is now 22 years of age. The applicant wife has been staying in a separate residence from the husband since quite some past but in spite thereof the husband had all long been voluntarily paying a sum of Rs. 100/- per month on account of the wife's maintenance until about August, 1966.
( 4 ) THE wife alleges cruelty by the husband and of his loose morals. There are allegations by the husband too against the wife suggesting without giving any particulars that she was disloyal to the husband and further that Tapati was not his daughter. According to the husband to avoid scandal this fact was not disclosed so long until the filing of this suit. Admittedly, till about July/august 1966 the husband was also meeting the expenses of Tapati as regards her maintenance and educational expenses were concerned. According to him, when at that time in 1966 Tapati went away from his custody and care he stopped giving her maintenance and educational expenses, It is an admitted case that till about August 1966 the husband all throughout has been paving a sum of Rs. 100/- per month and month by month for the maintenance of the wife in spite of the aforesaid allegations against the wife. It is said that it was not paid directly to the wife but through the elder brother of the wife. But since about that time the said monthly payment had been stopped. The result was that the wife had to file the present suit in March, 1967
( 5 ) ON behalf of the husband it has been argued that the fact that the wife is living separately from her husband might disentitle her to obtain a decree in the suit unless she can establish at the trial that her living in a separate residence was due to any of the grounds mentioned in Sub-section (2) of Section 18 of the Hindu Adoptions and Maintenance Act 1956 (Act 78 of 1956 ). It is further argued that in case any payment order by way of interim mainteiance is made that would amount to the passing of a decree for such amount without hearing the case on evidence and without a decree being passed thereon. It is argued that since the question of payment of interim maintenance has not been provided for in the said statute, the same cannot be granted in an interlocutory application. Furthermore, it is contended that the orders for injunction or for the appointment of a receiver or for the attachment before judgment or the like are all made pursuant to the provisions contained in the Code of Civil Procedure for such reliefs but in the instant case there is no such provision for payment of interim maintenance.
( 6 ) ON behalf of the wife the argument has been based mainly on the fact that this Court had on many previous occasions passed such orders for interim maintenance and in support of that Mr. Robi Goho. learned counsel, has relied on several unreported decisions. One of such cases was decided by Ray, J. on 30th January, 1964 in Suit No. 2213 of 1963, Sabitri Lala v. Satish Ch. Lala (Cal) granting an interim maintenance to the extent of a sum of Rs. 100/- per month pending the disposal of the said suit. On appeal from the said order bei
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