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2006 DIGILAW 2699 (PNJ)

Satyavir Vashist v. Asha Gambhir

2006-07-12

VINOD K.SHARMA

body2006
Judgment 1. Present revision petition has been filed against the order passed by the learned trial Court vide which the respondent has been granted interim maintenance at the rate of Rs. 3000/- per month from the date of filing of the application. 2. The respondent had filed a petition under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (for short the Act) for the grant of maintenance on the ground that the respondent was married to the petitioner on 7-4-1988 in accordance with the Hindu rites and custom at Ayyappa Temple Sector 23, Faridabad. It was the case of the petitioner that after the marriage, the parties resided together for about 4-5 years and the plaintiff has got 2 issues. It was also the case of the respondent/plaintiff that she had two issues, a son and a daughter, which were adopted by the petitioner. 3. The factum of marriage was disputed by the petitioner and it was his case that the parties were never married and the present application has been made to black mail the petitioner. It was further the case of the petitioner that a false case under Sections 494 and 506, IPC etc. was registered against the petitioner by the respondent. 4. The learned trial Court by relying upon a judgment of Supreme Court in Gokal Chand V/s. Pawan Kumari, AIR 1952 SC 231 raised a presumption of marriage and accordingly accepted the application for interim maintenance. The operative part of the order passed by the trial Court reads as under : "6. The Hon ble Supreme Court in Gokal Chand V/s. Pawan Kumari, AIR 1952 SC 231 has held that continuous cohabitation of man and woman as husband and wife and their treatment as such for number of years may raise presumption of marriage. Following these observations, and on perusal of documents placed on record by the plaintiff, a presumption of relationship of plaintiff and defendant as husband and wife is liable to be raised. It may also be added here that although there is no provision of grant of interim maintenance in the Hindu Adoptions and Maintenance Act, 1956 pending final decision of the proceedings yet the Court by virtue of the duty or render fair justice and on exercise of this inherent power under Section 151, CPC has wide discretion to grant interim relief. Citation to the effect is reported in Antu Ram V/s. Usha Rani 2000 (2) CCC 24 (P and H). Moreover, the present application filed by the applicant-plaintiff is duly supported by an affidavit of the plaintiff which prima facie proves her case for grant of interim maintenance." 5. Mr. D. S. Bali, Senior Advocate with Mr. G. S. Malik, Advocate vehemently challenged the order of ad-interim maintenance primarily on the plea that no ad-interim maintenance can be granted to the petitioner as the factum of marriage is in dispute. In support of his argument he placed reliance on a judgment of this Court in Makhan Singh V/s. Jagdish Kaur, 1991 (3) R Cri R 244 wherein it was held that the Court has no power to award interim maintenance pending decision of the petition under the Act. This Court in the above mentioned judgment had relied upon the judgment of Hon ble High Court of Andhra Pradesh in Gorivelli Appanna V/s. Gorivelli Seethamma, AIR 1972 AP 62. 6. Mr. R. K. Jain, learned counsel for the respondent on the other hand submitted that the learned trial Court has the right to grant ad interim maintenance by relying upon the judgment of this Court reported in Bohar Singh V/s. Balwinder Kaur 2000 (4) RCR (Civil) 172, wherein it has been held as under : "8. The ratio of all these judgments is to the effect that though the Act does not provide for grant of interim maintenance pending the final decision of the proceedings yet the Court by virtue of its duty to render fair justice and its inherent power, under Section 151, CPC has wide discretion to grant interim relief. The consensus of opinion seems to be that power to grant interim maintenance was within the width and amplitude of Section 18 of the Act and while exercising the power the Court should not ignore considering the said reality of long delay in the final disposal of the cases. xxx xxx xxx 12. In view of the law laid down in Puran Singh and Sunita Gandhi s case (supra) and Kanwar Vishwajit Singh s case (supra), I have no hesitation to hold that the Court while dealing with an application for the grant of maintenance under the Hindu Adoptions and Maintenance Act is entitled to grant interim maintenance." 7. xxx xxx xxx 12. In view of the law laid down in Puran Singh and Sunita Gandhi s case (supra) and Kanwar Vishwajit Singh s case (supra), I have no hesitation to hold that the Court while dealing with an application for the grant of maintenance under the Hindu Adoptions and Maintenance Act is entitled to grant interim maintenance." 7. Learned counsel also relied upon a judgment of this Court in Sukhminder Singh V/s. Baljeet Kaur 1999 (4) RCR (C) 652 wherein this Court has refused to interfere on the ground of ad interim maintenance on the ground that in case it is held that no maintenance can be granted during the pendency of the application it will deprive the right to live of applicant as envisaged under Article 21 of the Constitution of India and therefore, the plea that no ad interim maintenance can be granted can be rejected. It may be noticed that this Court in case of Sukhminder Singh (supra) was pleased to rely upon a Division Bench judgment of this Court in Puran Singh V/s. Mst. Har Kaur 1970 CLJ 648 to come to the conclusion that interim maintenance can be granted during the pendency of petition under Section 18 of the Act. 8. I have considered the contentions raised by the learned counsel for the parties and find that the matter with regard to the grant of maintenance during the pendency of the petition under Section 18 of the Act stand conclusively decided by the Division Bench of this Court in the case of Puran Singh (supra), wherein on consideration of the different judgments, the Division Bench of this Court was pleased to pass the following order : "This petition for revision was admitted to a Division Bench by the learned Chief Justice. It seems that the attention of the learned Chief Justice was drawn to an alleged conflict between certain decisions of Madras, Mysore and Orissa High Courts on one side and the Calcutta High Court on the other side. A close examination of these decisions discloses that in fact there is no conflict. The controversy is very narrow. In a suit filed by the wife for maintenance an interim maintenance of Rs. 50/- per mensem was granted to her by the trial Court. The objection to this grant is that the order granting interim maintenance is without jurisdiction and, therefore, bad. The controversy is very narrow. In a suit filed by the wife for maintenance an interim maintenance of Rs. 50/- per mensem was granted to her by the trial Court. The objection to this grant is that the order granting interim maintenance is without jurisdiction and, therefore, bad. The view taken by the Madras High Court, Mysore High Court and Orissa High Court is that where the marital status is disputed or the right to get maintenance is otherwise barred by law, no interim maintenance can be granted till the dispute as to status or as to the bar to receive maintenance is settled. This view finds support from the decisions in Mahomed Abdul Rahman V/s. Tejunnissa Begum (AIR 1953 Mad 420), Muniammal V/s. P. M. Ranganatha Nayagar (AIR 1955 Mad 571), Mulimani Sanna Basavarajappa V/s. Basavannappa (AIR 1959 Mys 152), K. V. Venkattarainam V/s. Kakinda Kamala (AIR 1960 Orissa 157). In all these cases the marital status was disputed. In fact these decisions were considered by the Calcutta High Court in Smt. Gouri Gupta Chaudhary V/s. Tarani Gupta Chaudhari (AIR 1968 Cal 305), and it was explained therein that in a case where there is no dispute as to the marital status or there is no bar to the wife receiving maintenance in law, an interim order granting maintenance in a suit for maintenance can be passed and it will not suffer from want of jurisdiction, for in that event it will not be deciding the substantive question. There is another decision of the Calcutta High Court taking the same view in Nemai Chand Jain V/s. Smt. Lila Jain, (AIR 1988 Cal 405). As already observed if these decisions are read together there would appear to be no conflict between the views of the Calcutta High Court and those of the other High Courts. It also stands to reason that where the marital status is admitted, it is the duty of the husband to maintain the wife no matter even if she is not prepared to live with him or perform the conjugal duties. It is another matter if she has become unchaste or has remarried. In that event there is no duty on the husband to maintain her. It is another matter if she has become unchaste or has remarried. In that event there is no duty on the husband to maintain her. So far as the present case is concerned it is admitted that the petitioner and the respondent are married and no plea has been raised that the wife has become unchaste. In this situation it cannot be said that the order of the trial Court granting interim maintenance is without jurisdiction." 9. Thus it is clear that law is settled that ad interim maintenance can be granted where the status of the parties is not in dispute. However, it is not open to the Court to grant maintenance ad interim under Section 18 of the Act in case there is a serious dispute regarding relationship between the parties. In the present case, the petitioner disputed the relationship of husband and wife and it is yet to be established by way of evidence as to whether there exists the relationship of husband and wife between the parties so as to entitle the respondent to claim maintenance from the petitioner. 10. Therefore, this revision petition is accepted. The impugned order to grant ad interim maintenance is set aside. However, keeping in view that it is a question of maintenance of the respondent as she claims to be living with the petitioner for a quite some time, I direct the trial Court to decide the main petition under Section 18 of the Act expeditiously preferably within 6 months from the date of receipt of a copy of this Court.