Gorivelli Appanna Petitioner (Respt. Ist Deft.) v. Gorivelli Seethamm (Petr. Pltf.).

1. In this revision petition, a question of some importance is raised viz., whether the wile suing for maintenance, can claim payment of interim maintenance during the pendency of the suit. The lower court awarded interim maintenance at the rate of Rs. 30/- per month. In this revision petition it is contended by Sri N.V Ranganadham, the learned counsel for the petitioner, that there is no provision of law under which an interim maintenance could be awarded. He relies upon a decision of a Division Bench of the Madras High Court reported in Jajee Md. Abdul Rahman v. Tajunissa Begum . 1952 2 M.L.J Page 846. But this Case has been explained in Muniammal v. Ranganadha Nayagar,2 The Calcutta High Court in Gouri Gupta v. Tarain Gupta . A.I.R 1968 Calcutta P. 305. appears to have taken the view that interim maintenance could be awarded. The above said decision of the Calcutta High Court, which is a single Judge, has also been confirmed in appeal by a Division Bench.

2. As the question raised is of importance and is likely to arise, it is appropriate that this question should be decided authoritatively by a Bench. Post the Revision Petition before a Bench. The papers will be placed before My Lord the Chief Justice for appropriate directions in this behalf.

3. This Revision petition coming on for final hearing before the Bench cousisting of the Hon'ble Mr. Justice Chinnappa Reddy and the Hon'ble Mr. Justice A.D.V Reddy.

4. Mr. N.V Ranganadham, Advocate for the petitioner,

5. V. Parabrahma Sastry, appointed as Amicus curea for the respondent.

6. The court delivered the following:—

JUDGMENT

(Judgment of the Bench delivered by Chinnappa Reddy, J.)

7. This Civil Revision Petition has been referred to a Division Bench by our brother Ramachandra Rao, J. as he was of the view that it raised an important question.

8. Pending decision of a suit filed by the respondent for maintenance, past and future, against her husband, she filed an application purporting to be under S. 151 C.P.C, and S. 18 of the Hindu Adoptions and Maintenance Act, for a direction to her husband that be should pay her a sum of Rs. 150/- per month towards interim maintenance. The husband opposed the application as not maintainable as he was contesting her very right to maintenance in the suit. He also submitted that he had already obtained a decree for restitution of conjugal rights against his wife and no award of maintenance could, therefore be made against him. The learned Subordinate Judge over-ruled the objection regarding the maintainability of the petition and awarded interim maintenance at the rate of Rs. 30/- per month. Aggrieved by this order, the husband has preferred this Civil Revision Petition.

9. Sri N.V Ranganadham, learned counsel for the petitioner contended that the lower court had no jurisdiction to grant interim maintenance in a case in which the very right to maintenance was in contest. He submitted that neither S. 151 CPC nor S. 18 of the Hindu Adoptions and Maintenance Act 1956 authorised the award of interim maintenance. The learned counsel for the respondent, on the other hand submitted that it is the inherent right of every Court, under S. 151 CPC to act on the principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law and that the court may exercise such powers as may be necessary to do the right in the course of the administration of justice. He submitted that the grant of interim maintenance was permitted both by S. 151 CPC and S. 18 of the Hindu Adoptions and Maintenance Act.

10. Sec. 151 of the Civil Procedure Code recognises the inherent power of the court “to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court”. The code itself is intended to regulate the procedure of Court Sec. 151, therefore, is concerned with the procedure to be followed by the Court in deciding the cause before it. The inherent powers recognised by S. 151 cannot resort to matters other then procedural. The court cannot resort to the provision of S. 151 to encroach upon substantive right of parties or, in an Interlocutary Application, upon matters which await adjudication in the suit. No order under S. 151 CPC. can be made except ‘in aid of the suit’. Such an order may be a step towards obtaining a final adjudication in the suit or it may be with a view to ‘rendering the judgment effective, if obtained’. Instances of orders which are steps towards judgment are an order adjourning the hearing of the suit, an order advancing the hearing of the suit, an order amending a pleading, an order directing inspection, an order appointing a commissioner in circumstances not covered by S. 75 or Order 26 CPC etc. Instances of orders made to render the judgment effective, if obtained, are an order granting an injunction in cases not falling under Order 39, an order appointing an interim Receiver in cases not falling under Order 40 CPC etc. That the Court has no inherent power to travel beyond matters of procedure is now settled by a decision of their Lordships of the Supreme Court in Padam Sen v. State of U.P . 1961 2 S.C.J 79.. It was observed there:

“The inherent powers saved by S. 151 of the Code are with respect to the procedure to be followed by the Court in deciding cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters and procedure, which powers have their source in the Code possessing all the essential powers to regulate its practice and procedure”.

11. The award of interim maintenance pending decision of a suit in which the right to maintenance is in contest cannot certainly be called a procedural matter. An order awarding interim maintenance can neither be said to be a step towards final judgment effective. It cannot be said to be “in aid of the suit” at all. Such an order cannot be made under S. 151 C.P.C It can no more be made in exercise of the inherent powers under S. 151 C.P.C than a defendant can be directed to pay straight away to the plaintiff in a suit for money the amount admitted by him to be due to the plaintiff or which the Court may prima facie find the plaintiff to be entitled, or a defendant can be directed to deliver straight away to the plaintiff in a suit for possession of several properties, the items admitted by him to belong to the plaintiff or which the Court may find him to be prima facie entitled. In cases where the defendant admits part of the claim of the plaintiff, the latter may ask the Court to pronounce judgment and pass a decree to the extent of the admitted claim while postponing adjudication in regard to the rest of the claim. This is provided by Order 12 Rule 6 of the Civil procedure Code. But even in such cases there must be a Judgment and decree finally disposing of the admitted claim. A Court cannot by an interlocutory order direct a defendant to pay an admitted amount or deliver an admitted item of property. That can only be done by judgment and a decree. Where no part of the claim is admitted the court cannot obviously pronounce a judgment and pass a decree under Order 12 Rule 6. Nor can a Court embark upon an interim adjudication in order to make an interlocutory order directing the defendant to pay the amount found to be prima facie due or to deliver properties prima facie found to belong to the plaintiff. If the Court makes such an order it would be acting without jurisdiction.

12. In Hajee Mahomed Abdul Rahman v. Tajunnissa Begum the facts were as follows:— The plaintiff filed a suit for recovery of arrears of maintenance and for future maintenance at the rate of Rs. 500/- per month. She claimed that she was married to the defendant and that the marriage was subsisting. The defendant contested the suit. He denied that the plaintiff was married to him. He denied his liability to pay maintenance. Pending disposal of the suit the plaintiff filed an application praying for the award of interim maintenance at the rate of Rs. 500/- per month Panchapakesa Aiyar, J. sitting on the original side of the High Court made an order directing the defendant to pay maintenance at the rate of Rs. 500/- per month. Against that order an appeal was filed under Clause 15 of the Letters Patent and Rajamannar C.J and Venkatarama Aiyar, J. reversed the order holding that Panchapakesa Aiyar, J. had no jurisdiction to grant interim maintenance when the very right to maintenance was in contest in the suit. After referring to the observations of Horwill, J. in Latchanna Doru v. Malludora . 4940 2. M.L.J 572. Jackson, J. in CRP 1312/1930, Sir Dawson Miller, C.J Gopal Saran v. Sita Devi . AIR 1924 Patna 69. and Viswanatha Sastri, J. in CRP No. 662/1950, the learned judge observed.

“Thus there is overwhelming authority or the position that when the claim made in the plaint is contested, the Court has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be by the final bearing in the suit. To grant any relief in an interim application would be to grant the relief which can properly be granted only by the ultimate determination in the suit and the decree following thereon. The Civil Procedure Code confers certain powers on the Court to grant relief in interim proceedings such as for example, power to issue injunctions attachments before judgments or appointment of receivers. Where such a relief is claimed the Code prescribes the conditions on which such relief could be granted. But apart from such powers, there is no inherent jurisdiction in Courts to grant interim relief which properly ought to be granted only by the decree after determination of the points in controversy. We are accordingly of opinion that the order of the learned Judge granting interim relief in the suit in which the claim of the plaintiff is hotly contested, was without jurisdiction”.

13. We express our respectful and complete concurrence. We also agree with the observations of Jackson, J. and Sir Dawson Miller C.J, which were extracted by the learned Judges. The learned counsel for the respondent drew pointed attention to the last sentence in what has been extracted by us and urged that it was only in cases where the claim of the plaintiff was ‘hotly contested’ that the Court would have no jurisdiction to grant interim maintenance, but that in cases where the Court was able to come to a prima facie conclusion without any difficulty the Court would have jurisdiction to grant interim maintenance. We are unable to agree with the learned Counsel. What the learned Judges stated in the sentence on which reliance was placed by the learned counsel was the fact that in the case before them the suit was ‘hotly contested’. It was no more than a statement of fact. They were merely describing the particular contest between the parties to that suit and they certainly did not lay down that the jurisdiction of the Court depended on the heat of the contest. The ratio decidendi of the case is clear from the first sentence. “Thus there is overwhelming authority for the position that when the claim made in the plaint is contested, the Court has no inherent jurisdiction to grant relief until that claim is determined on its merits and that can only be by the final hearing of the suit”.

14. The decision in Abdul Rahman v. Tajunissa Begum Supra was followed by the Mysore High Court in Muli Mani Sanna Basava Rajappa v. Basavanappa . AIR 1959 Mysore 152. and by the Orissa High Court in Venkataratnam v. Kakinada Kamala . AIR 1960 Orissa 157. In Subramania Aiyar v. Padmavati Ammal . AIR 1954 T.C 123., a learned single Judge, of the Travancore Cochin High Court while agreeing that an order awarding interim maintenance could not be made under S. 151 C.P.C held that such an order could be under Order 12 Rule 6 C.P.C We have already pointed out that Order 12 Rule 6 does not contemplate the passing of interim orders but empowers the Court to pass judgments and decrees in respect of admitted claims pending disposal of adjudication of the disputed claims in a suit. In Muniammal v. Ranganatha Nayagar Rama swamij, J. attempted to explain away the decision in Hajee Mahomed Abdul Rahman v. Tajunnissa Begum (supra) on the ground that the learned Judges were there dealing with a case where the right to maintenance was ‘Hotly contested’. We have already expressed our view that the ratio decidendi of the case cannot be confined to cases of keen contest.

15. A somewhat different note was struck by Datta, J. in Smt. Gouri Gupta Chaudhury…Applicant; v. Tarani Gupta Chaudhury…. . A.I.R 1968 Cal. 305. and by Ray and Mukherjee, JJ. on appeal from the Judgment of Datta, J. in Tarani Gupta v. Gouri Gupta Datta, J., distinguished Abdul Rahman's case as Ramaswami, J. did on the ground that it was a case of keen contest. The learned Judge said:

“In considerable cases where on the materials before it the Court finds no difficulty in assessing the reasonable maintenance and where the marriage is not hotly contested the court should make order for interim maintenance in the interests of justice by invoking the powers under Section 151 of the Code of Civil Procedure”.

16. In the light of our earlier discussion we were unable to agree with these observations. The learned Judge also thought that the provisions or S. 18 of the Hindu Adoptions and Maintenance Act empowered the Court to award interim maintenance. We respect fully disagree. S. 18 of the Hindu Adoptions and Maintenance Act is as follows:—

“18(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall, be entitled to be maintained by her husband during her life time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiture of her claim to maintenance—

(a) if he is guilty of desertion-

(b) if be has treated her with such cruelty—

(c) if he is suffering from a virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house—

(f) if there is any other cause justifying her living separately—

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion”.

17. S. 18 merely clothes a Hindu wife with the right to be maintained by her husband. It may be more correct to say that S. 18 recognises the right of a Hindu wife to be maintained by her husband since she possessed such a right even under the Hindu law. Where the husband fails to discharge the obligation of maintaining his wife, the wife can enforce her right to maintenance by instituting an appropriate action. To such an action the defendant may have several defences. He may deny the marriage itself. He may deny that the marriage is subsisting. He may plead that the wife is unchaste or has ceased to be a Hindu. He may plead that the wife is living separately from him without any just cause. An these questions, if pleaded will have to be decided in the suit. Maintenance can be awarded by the Court only after adjudication of the questions involved in the suit. If the wife succeeds she will be awarded maintenance from the date of suit or even earlier, as the case may be. There is no question of the husband taking advantage of the filing of the suit and stopping maintaining the wife, as Datta, J. seems to have thought, since, if the wife establishes her claim she will be entitled to recover arrears of maintenance also. In our view S. 18 does not authorise the award of interim maintenance pending decision on the claim to maintenance in contest in the suit. The right of the wile to be maintained by the husband should not be confused with the power of the Court to award interim maintenance pending an action for maintenance where such right is in dispute. The Court has no power unless statute expressly confers such a power on it. For example, a power to award maintenance pendente lite is expressly conferred by S. 24 of the Hindu Marriage Act. The Hindu Adoptions and Maintenance Act does not contain a similar provision. Ray and Mukherjee, JJ. expressed the same view as Datta, J. on appeal. They also added that an order awarding interim maintenance was an older ‘in aid of the suit’. We do not see how it is. It is not a step towards final judgment. It is not intended to render such judgment effective. In another case Jain v. Jain . A.I.R 1968 Calcutta 405. Ray and Mukherjee, JJ. dealing with the same question said.

“The Court has power to make interlocutory orders in aid of a suit. Denial of status does not take away the jurisdiction of the Court. Interim maintenance is not an act of exercise of inherent jurisdiction. Interim maintenance is granted as an interlocutory relief in the suit”.

18. We are unable to agree with the learned Judges. Interlocutory relief, as the Judges call it, cannot, in our view, be granted except under express statutory authority. There is no statutory authority to award interim maintenance pending an action for maintenance where the right to maintenance is in dispute. The learned counsel for the respondent relied on Gulabchand v. Kurji Bhagwanji . A.I.R 1962 Gujarat 227. and Subbayya v. Kandaswami . A.I.R 1935 Madras 105.. The first was a case under the Guardian and wards Act and it was held by Bhagwati, J. that the power to award interim maintenance was implicit in the power to direct interim custody of the minor. That case does not touch the present problem. In the second case also minors were involved. A suit was filed on behalf of two minor sons by their mother against their father for partition of joint family properties. The father admitted that the two minors were his sons and that the properties were joint family properties. His defence, was that the suit was not in the interest of the minors. Pending disposal of the suit the trial Court granted interim maintenance at the rate of Rs. 25/- per month. Walsh, J. though that as the plaintiffs were minors and as neither their share in the joint family properties nor their alternative right to be maintained by their father was disputed, there was no bar to the exercise of inherent jurisdiction under S. 151 C.P.C to award interim maintenance. These facts, namely, that the plaintiffs there were minors and their right to be maintained was undisputed, distinguish that case from the present case. In fact that was also wow Walsh, J. distinguished the earlier decision of Jackson J in CRP. 1312/1930. It is unnecessary for us to consider the correctness of Walsh, J's view. It is sufficient to say that Walsh J was not considering a case where the right to maintenance was itself in dispute.

19. As a result of the foregoing discussion we hold that the Court has no jurisdiction to award interim maintenance pending decision of a suit in which the right to maintenance is in contest. The Civil Revision Petitioner is allowed but in the circumstances without costs. We are grateful to Sri V. Parabrahma Sastry for assisting us as amicus curiae.