The Guardian and Wards Act does not provide for interim maintenance for a spouse during custody proceedings.

J U D G M E N T

Shaffique, J Ext.P4 order passed by the Family Court in I.A.No.614/2014 in O.P.No.276/2014 is under challenge. By the interim order direction had been issued by the Court below to pay an amount of Rs.2,000/- to the petitioner and Rs.1,000/- each to the children from 13/06/2014.

2. The main contention urged by the learned counsel for the petitioner is that the original petition is filed before the Family Court under the Guardian and Wards Act for permanent custody of the children. In the said application, claim for interim maintenance for the mother is not permissible. 3. Heard learned counsel for the respondent.

4. This position of law has been well settled in Binulal v.

Roopa [2011(3) KLT 933] wherein it is held by this Court at paragraphs 5 and 6 as under:

O.P.(F.C) No.430/2014 “5. On to the order for interim maintenance to the wife, it has to be noted that the main matter pending before the Family Court is only an application filed by the husband under the provisions of the G. & W. Act for custody of the child. It is not a petition for divorce. It is not a litigation claiming maintenance. The G. & W. Act does not contain any provision similar to that in S.24 of the Hindu Marriage Act 1955; S.36 or 41 of the Indian Divorce Act, 1869; S.38 of the Special Marriage Act, 1954 or S.39 of the Parsi Marriage and Divorce Act, 1936. Unlike in those legislations which provide for issuing orders for making provision for interim maintenance or alimony pendente lite to the wife, there is no such provision in the G. & W. Act. The reason for this is obvious. The proceedings under the G. & W. Act is not necessarily a litigation relating to or generated by the matrimonial tie and the matrimonial home. Under the G. & W. Act, proceedings can be had even in different other situations as are contemplated by that legislation. It does not necessarily depend upon any relationship arising out of a marriage. In the absence of any enabling provision in the G. & W. Act entitling the wife to claim maintenance for herself pending consideration of an application under the G. & W. Act in relation to the child, we do not find any substantive right in that regard. Hence, the G. & W. Act does not provide for issuing any order for maintenance, O.P.(F.C) No.430/2014 including interim maintenance or pendente lite alimony in favour of the wife, though she may be a party to the proceedings. We, therefore, see no statutory support for the interim order for maintenance in favour of the wife in an application filed by the husband for custody of the child.

6. Learned counsel for the respondent-wife, however, pointed out that proceedings for maintenance is enjoined by clause (f) of S.7(1) of the Family Courts Act , 1984. That provision only enjoins that the Family Court has jurisdiction to decide a suit or proceeding for maintenance and it operates to exclude the jurisdiction of other courts. All that is provided for in S.7 is that actions enumerated therein shall be instituted in the Family Court. Therefore, an application or suit for maintenance could be filed in the nature of an application or petition in the Family Court. What is thereby instituted is a litigation claiming maintenance in terms of the legal rights of the claimants, available on the basis of substantive law which confers the right to sue. But in the absence of any provision of law authorising the wife to make such an application, pending consideration of the husband's petition for custody of the child, we do not find any substantive right being granted by the provisions of the Family Court Act to that effect. Thus the argument on the basis of the fails.”

O.P.(F.C) No.430/2014

5. Having regard to the aforesaid legal position, it is apparent that the impugned order is not sustainable as far as the ground of maintenance to the respondent is concerned.

Accordingly, we modify Ext.P4 order to the following extent:

i) That the direction to pay maintenance at the rate of Rs.2,000/- to the petiti