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Allahabad High Court · body

2010 DIGILAW 1200 (ALL)

SAMAUN KHAN v. ROSHNI PARVEEN

2010-04-15

D.P.SINGH, S.C.CHAURASIA

body2010
JUDGMENT By the Court.—Heard Sri M.M. Salman, learned counsel for the appellant. Inspite of service of notice, respondent has not put in appearance. Accordingly, we proceed to decide the present appeal with the consent of learned counsel for the appellant. 2. The present appeal filed under Section 19 of the Family Courts Act, 1984 involves the substantial question of law as to whether in a suit filed by a person belonging to muslim community for restitution of conjugal rights, Family Court may grant interim maintenance and cost of litigation? 3. The submission of learned counsel for the appellant is that under the provisions of Muslim Personal Law, the Court lacks jurisdiction to grant interim maintenance pendente-lite or the cost of litigation. 4. The brief matrix of the case, are that the appellant and the respondent had entered into wedlock on 23rd November, 2005, in accordance to ritual/ ceremony prescribed under the Muslim’s Personal Law. After wedlock, the appellant and respondent were residing as husband and wife. However, it appears that because of bitter relationship, the respondent-wife had gone to her Maika. Feeling aggrieved, the appellant filed a suit for restitution of conjugal rights before the Principal Judge, Family Court, Faizabad. The copy of the plaint has been filed as Annexure No. 1 to the appeal. 5. A perusal of the plaint filed with the appeal, reveals that the marriage of the appellant with respondent was solemnized on 23rd November, 2005 under the Muslim Personal Law and because of some quarrel between the husband and wife, the respondent had gone to her Maika on 22nd December, 2007, hence, the suit was filed before the Principal Judge, Family Court, Faizabad. The respondent put in appearance and moved an application under Section 151 of Code of Civil Procedure claiming maintenance pendente-lite at the rate of Rs. 1,000/- per month and the cost of litigation to the tune of Rs. 15,000/- 6. An objection(Annexure No. 3 to the appeal) was filed by the appellant with the submission that the respondent’s father, Mr. Israr Khan, lives in Saudi Arabia and he is a rich person and has got sufficient source of livelihood and hence, he is well rich to provide necessary assistance to the respondent. 7. It has further been stated that the appellant is a labourer and he is ready to keep the respondent with him. Israr Khan, lives in Saudi Arabia and he is a rich person and has got sufficient source of livelihood and hence, he is well rich to provide necessary assistance to the respondent. 7. It has further been stated that the appellant is a labourer and he is ready to keep the respondent with him. There appears no justification for payment of maintenance or the cost of litigation. It has also been stated by learned counsel for the appellant that the respondent has already moved an application under Section 125 of the Cr.P.C., in which no maintenance has been granted. However, the matter is pending for adjudication. It has been further stated that an application under the Protection of Women from Domestic Violence Act, 2005, was moved by the respondent which was decided in her favour directing the appellant to pay maintenance/expense at the rate of Rs. 1500/- per month. The appeal filed against the said order was dismissed. Hence, the appellant preferred a revision in which by an interim order, this Court has provided to pay expense to the respondent at the rate of Rs. 1,000/- per month. 8. It has been stated that the appellant is complying with the order passed by this Court and paying Rs. 1,000/- per month as maintenance to the respondent. The Principal Judge, Family Court, Faizabad has gone through the record and after providing the opportunity of hearing to the parties, directed to pay the maintenance at the rate of Rs. 800/- per month and the cost of litigation to the tune of Rs. 5,000/-. The Principal Judge, Family Court, Faizabad has relied upon the pleadings on record to the effect that during the course of solemnization of marriage, the father of respondent had given ornaments, costly clothes and utensils etc. and keeping in view the fact that solemnization of marriage between the parties, was costly affair, the appellant’s financial status seems to be sound, hence, directed to pay the maintenance in the manner stated above. 9. While assailing the impugned order, learned counsel for the appellant has relied upon a Judgment of the Hon’ble Supreme Court reported in AIR 1961 Supreme Court 218, Padam Sen and another Vs. The State of Uttar Pradesh, and also another Judgment of this Court in Dilip Kumar v. Special Judge, Barabanki and others, (1992 AWC) 348. 10. 9. While assailing the impugned order, learned counsel for the appellant has relied upon a Judgment of the Hon’ble Supreme Court reported in AIR 1961 Supreme Court 218, Padam Sen and another Vs. The State of Uttar Pradesh, and also another Judgment of this Court in Dilip Kumar v. Special Judge, Barabanki and others, (1992 AWC) 348. 10. In the case of Padam Sen and another (supra), their Lordships of Hon’ble Supreme Court held that under Section 151 of the Code of Civil Procedure, the Court lacks inherent power to appoint a Commissioner to seize the account-books in possession of the plaintiff on the application moved by the defendant. It has further been held by Hon’ble Supreme Court in the said case that in case, there is some statutory provision, the power should be exercised under the said provision and not under Section 151 of the Code of Civil Procedure. 11. In the case of Dilip Kumar (supra), marriage was not admitted fact, hence, this Court has observed that no interim maintenance could have been granted by the Court. 12. We are of the view that the facts and circumstances of both the cases relied upon by learned counsel for the appellant, do not seem to be applicable with regard to present controversy. The appellant has exercised jurisdiction under Section 7 of the Family Courts Act, 1984. For convenience, Section 7 of the Family Courts Act, 1984 is reproduced as under : “7. Jurisdiction.—(1) Subject to the other provisions of this Act, a Family Court shall— (a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends. Explanation.—The suits and proceedings referred to in this sub-Section are suits and proceedings of the following nature, namely : (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them: (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise— (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure,1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment. 13. Clause ( b) of sub-Section 1 of Section 7 of the Family Courts Act, 1984, empowers the Family Court to entertain a suit or proceeding with regard to declaration of validity of a marriage or matrimonial status of any person. Clause (d) of sub-Section 1 of Section 7 of the Family Courts Act, 1984, empowers the Family Court to entertain a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship. Clause (f) of sub-Section 1 of Section 7 of the Family Courts Act, 1984 empowers the Family Court to entertain a suit or proceeding for maintenance. Thus, a plain reading of Clause (d) of sub-Section 1 of Section 7 of the said Act shows that a suit or proceeding for an order or injunction in circumstances arising out a marital relationship, may be filed before the Family Court. Thus, a plain reading of Clause (d) of sub-Section 1 of Section 7 of the said Act shows that a suit or proceeding for an order or injunction in circumstances arising out a marital relationship, may be filed before the Family Court. The appellant has invoked the statutory provisions under Section 7 of the Family Courts Act, 1984, by preferring a suit for restitution of conjugal rights. An application was moved for payment of maintenance by the respondent, which has been decided by the impugned order. The application moved by the respondent and consequential decision taken by the Family Court is a proceeding for an order or injunction in circumstances arising out of a marital relationship. Accordingly, the Family Court has acted within its jurisdiction while directing to pay maintenance to the respondent. 14. Learned counsel for the appellant has vehemently tried to defend his cause stating that under Hindu Marriage Act, there is a provision under Section 24 of the Act empowering the Family Court to pass an order for pendente-lite maintenance, but, under Muslim Personal Law, there is no such statutory provision. The submission of learned counsel for the appellant seems to be not sustainable because of the fact that the Family Courts Act, 1984 is a central enactment and power conferred by the Act is a special law empowering the Court to pass appropriate order and proceed in family disputes being special enactment. The provisions contained in the Family Courts Act, 1984 (in short referred as an Act) shall be applicable to the family disputes of every citizen, whosoever may be, ignoring the caste, creed or religion. A person may approach the Family Court under the Act to ventilate his grievance and the Family Court has got ample power to pass appropriate order keeping in view the facts and circumstances of the case. The aim and object of the Family Courts Act is to impart justice to the citizens of this country without any discrimination on the ground of caste, creed and religion. 15. While entertaining the suit under the Act, the Family Court has got power to award maintenance . The powers conferred to the Family Court under the Act is in addition to the powers conferred by other statutory provisions. 16. 15. While entertaining the suit under the Act, the Family Court has got power to award maintenance . The powers conferred to the Family Court under the Act is in addition to the powers conferred by other statutory provisions. 16. So far as submission of learned counsel for the appellant that the respondent has already been given maintenance under the Protection of Women from Domestic Violence Act, 2005, is concerned, it shall make no difference since under the said Act, additional rights and privileges have been granted to the citizens in addition to existing law as is evident from Section 26 of the said Act. For convenience, Section 26 of the Protection of Women from Domestic Violence Act, 2005 is reproduced as under : “26. Relief in other suits and legal proceedings.—(1) Any relief available under Sections 18,19,20,21 and 22 may also be sought in any legal proceeding, before a civil Court, family Court or a criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub-Section (1) may be sought for in addition to and alongwith any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal Court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief. 17. In view of above, only because an amount of Rs. 1,000/- has been awarded to the respondent under the Protection of Women from Domestic Violence Act, 2005, the respondent is not entitled for any relief from the Court, in pursuance to the impugned order, seems to be not sustainable. 18. Section 26 (3) of the Protection of Women from Domestic Violence Act, 2005 further provides that it shall be incumbent upon the parties or an aggrieved person to inform the Magistrate with regard to grant of relief under the said Act, meaning thereby while granting maintenance to a person in a suit or legal proceeding, the Court may take into account the relief of maintenance granted in pursuance to the provisions contained under. “The Protection of Women from Domestic Violence Act, 2005). “The Protection of Women from Domestic Violence Act, 2005). Accordingly, appellant has got option to inform family Court with regard to maintenance already granted and Court may look into matter. 19. So far as the powers conferred by Section 151 of the Code of Civil Procedure is concerned, there are number of judgments of Hon’ble Supreme Court, where their Lordships of Hon’ble Supreme Court held that Court has got ample powers under Section 151 of the Code of Civil Procedure to pass appropriate orders for the ends of justice. 20. In case in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256 their Lordships of Hon’ble Supreme Court held that the powers conferred by Section 151, C.P.C. are quite exhaustive and while exercising powers, the Court may pass appropriate order to meet the ends of justice but should not pass any order, which nullifies the statutory provisions of the Code of Civil Procedure or any other law time being enforced (Para 12). 21. In a case in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , Hon’ble Supreme Court while considering the power conferred by Section 151 of the Code of Civil Procedure, observed that keeping in view the literal meaning of Section 151 of the Code of Civil Procedure, there is nothing in the Section which shall be deemed to limit or otherwise affect the inherent power of the Court. The observation was made by Hon’ble Supreme Court after considering earlier Privy Council’s judgment. Relevant portion of the Judgment of Hon’ble Supreme Court in the case of Manohar Lal Chopra (supra) is reproduced as under : “(23) The case reported as Maqbul Ahmad v. Onkar Pratap Narain Singh, 62 Ind App. 80 : AIR 1935 PC 85, does not lay down that the inherent powers of the Court are controlled by the provisions of the Code. It simply holds that the statutory discretion possessed by a Court in some limited respects under an Act does not imply that the Court possesses a general discretion to dispense with the provisions of that Act. In that case, an application for the preparation of a final decree was presented by the decree-holder beyond the period of limitation prescribed for the presentation of such an application. In that case, an application for the preparation of a final decree was presented by the decree-holder beyond the period of limitation prescribed for the presentation of such an application. It was however contended that the Court possessed some sort of judicial discretion which would enable it to relieve the decree-holder from the operation of the Limitation Act in a case of hardship. To rebut this contention, it was said at page 87(of IA) : (at p. 88 of AIR): “It is enough to say that there is no authority to support the proposition contended for. In their Lordship’s opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that Section 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings.” These observations have no bearing on the question of the Court’s exercising its inherent powers under Section 151 of the Code. The Section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. (24) Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.” 22. In a case in The Newabganj Sugar Mills Co. (24) Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.” 22. In a case in The Newabganj Sugar Mills Co. Ltd. and others v. The Union of India and others, AIR 1976 SC 1152 , their Lordships of Hon’ble Supreme Court again reiterated the aforesaid proposition of law and held that though there may be limitations on the inherent power of the Court, but, it has its roots in the necessity and its breadth is co-extensive with the necessity. The relevant portion of the judgment of Hon’ble Supreme Court in the case of the Newabganj Sugar Mills Co. Ltd. (supra) is reproduced as under : “6............The difficulty we face here cannot force us to abandon the inherent powers of the Court to do. “The inherent powers has its roots in necessity and its breadth is coextensive with the necessity”. Certainly, we cannot go against any statutory prescription. Had India had a developed system of class actions or popular organization taking up public interest litigation, we could have hoped for relief otherwise than by this Court’s order. We lag in this regard, although people are poor and claims are individually trivial. Legal aid to the poor has a processual dimension. As things stand, if each victim were remitted to an individual suit, the remedy could be illusory, for the individual loss may be too small, a suit too prohibitive in time and money and the wrong would go without redress. If there is to be relief we must construct it here by simple legal engineering.” 23. Hon’ble Supreme Court in a case in M/s. Ram Chand and Sons Sugar Mills Private Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava and others, AIR 1966 SC 1899 (V 53 C 384), held that the Court is competent to make suitable order under Section 151 of the CPC as may be necessary for ends of justice or to prevent the abuse of process of Court. There is nothing in Order 29 of the Code of Civil Procedure which expressly or by necessary implication precludes the exercise of the inherent power of Court under Section 151 of the Code of Civil Procedure. 24. There is nothing in Order 29 of the Code of Civil Procedure which expressly or by necessary implication precludes the exercise of the inherent power of Court under Section 151 of the Code of Civil Procedure. 24. In one another case in Vikas Aggarwal v. Anubha, 2004 (4) SCC 468 their Lordship of Hon’ble Supreme Court held that inherent powers of the Court under Section 151 of the Code of Civil Procedure can always be exercised to advance interests of justice and the technicalities will have no place in such matters. Order 39 of the Code does not expressly or by necessary implication preclude the exercise of inherent power by the Court under Section 151 of the CPC. Court may pass appropriate suitable order to meet out the ends of justice. 25. In one another case in Vareed Jacob v. Sosamma Geevarghese and others, 2004(6) SCC 378 their Lordship of Hon’ble Supreme Court reiterated the aforesaid principle and held that in appropriate matter Court may pass appropriate order to meet out the ends of justice. It has been held that inherent power of the Court is to do justice in addition to and complementary to powers conferred under CPC, expressly or by implication. 26. Thus, while granting maintenance in the case filed for restitution of conjugal rights by a person governed under the Muslim Personal Law, the Court may pass appropriate orders for grant of maintenance as well as for payment of cost of litigation. 27. Nothing has been brought on record nor pointed out by learned counsel for the appellant that grant of maintenance or payment of cost of litigation, shall be violative of some statutory provisions. In the absence of statutory bar, the order passed by Family Court, cannot be faulted. 28. Apart from above, there is one another aspect of the matter. Right to life and the right to livelihood are fundamental rights guaranteed under Article 21 of the Constitution of India as settled by Hon’ble Supreme Court in catena of judgments. The meaning of the word “LIFE” interpreted by Hon’ble Supreme Court from time to time. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 : 1964 (1) SCR 332 , it was held that the term “life indicates more than mere animal existence. The meaning of the word “LIFE” interpreted by Hon’ble Supreme Court from time to time. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 : 1964 (1) SCR 332 , it was held that the term “life indicates more than mere animal existence. [See also : State of Maharashtra v. Chandrabhan Tale, AIR 1983 SC 803 : 1983 (3) SCR 337 : (1983) 3 SCC 387 ]. The inhibitions contained in Art. 21 against its deprivation extends even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha v. U.O.I., AIR 1984 SC 802 : 1984 (2) SCR 67 : 1984 (3) SCC 161 , it was held that the right to life under Article 21 means the right to live with dignity, free from exploitation. In case, the wife is suffering from paucity of funds or is unable to maintain herself or she has got no sufficient means for livelihood, then, the Court, in a pending suit for restitution of conjugal rights, has got ample powers to direct for payment of maintenance in pursuance to the powers conferred by Section 151 of the Code of Civil Procedure. Needless to say that right to life and livelihood does not mean animal living but a quality of life suiting to the status of the person concern. 29. Analogy may also be drawn from the Protection of Women from Domestic Violence Act, 2005 where the Parliament to its wisdom, deals with the situation with regard to plight of women without differentiating on the basis of caste, creed or religion. The statutory protection granted by Parliament is to meet out the requirement of Article 21 of the Constitution of India. Accordingly, even if there is no statutory provision, temporary injunction may be granted or an order may be passed by the Family Court for the payment of maintenance including cost of litigation without discriminating the ladies of the country on the basis of caste, creed or religion. 30. In view of above, the impugned order passed by the Family Court, does not seem to suffer from any impropriety or illegality. The appeal is devoid of merit. It is dismissed accordingly. No order as to cost. ————