Sangeeta Piyush Raj vs Piyush Chaturbhuj Raj

Mumbai High Court
Sangeeta Piyush Raj vs Piyush Chaturbhuj Raj on 13/1/1998

ORDER

M.B. Shah, C.J.

1. After considering the various decisions cited at the hearing of the
  Notice of Motion, by order dated 17th January, 1997, Variava, J.,
  referred to the Division Bench the following two questions for
  determination:–

“1. Whether in proceedings under section 18 of the Hindu Adoptions
  and Maintenance Act, the Court can grant interim maintenance?

2. Whether if matrimonial proceedings are pending between the
  parties then an application for interim maintenance must be made
  only to the Family Court under the provisions of section 24 of the
  Hindu Marriage Act?”

2. With regard to the first question, after considering the various
  decisions, the Division Bench of this Court (V.P. Tipnis & Mrs. R.R
  Desai, JJ.) by judgment and order dated (16th and 17th December, 1997
  in Appeal No. 14 of 1997) has arrived at the conclusion that, in a suit
  filed under section 18 of the Hindu Adoptions and Maintenance Act,
  1956, the Court has jurisdiction and power to pass appropriate interim
  and ad-interim orders. We agree with the said conclusion.

3. Further, it is to be noted that the Hindu Adoptions and Maintenance
  Act, 1956 codifies the law relating to adoptions and maintenance among
  Hindus. It only declares and codifies the law with regard to adoptions
  and maintenance by Hindus. The basis of such obligation to maintain
  wives, widowed daughter-in-law, children and aged parents may be a
  pious obligation of Hindus. The provisions relating to maintenance are
  in Chapter III. Section 18 deals with maintenance of a wife during her
  life time under certain circumstances, as provided in sub-section (2)
  thereof. Section 19 provides for maintenance of a widowed
  daughter-in-law to the extent that she is unable to maintain herself
  out of her own earnings or other property by her father-in-law.
  Similarly, section 20 provides for maintenance of his or her legitimate
  or illegitimate children and his or her aged or infirm parents. The
  liability to pay maintenance to children is on the father or mother.
  Similarly, liability to pay maintenance to infirm parents is on the son
  or the daughter. Section 22 further provides that the heirs of a
  deceased Hindu are bound to maintain the defendants of the deceased (as
  defined in section 21) out of the estate inherited by them from the
  deceased. Section 23 provides for the objective criteria for
  determining the amount of maintenance. Further, the requirement is that
  no person shall be entitled to claim maintenance if she or he has
  ceased to be a Hindu by conversion to any other religion (section 24).
  Section 25 empowers the alteration of the amount of maintenance on
  change of circumstances justifying such alteration. Further, the
  proceedings initiated for getting maintenance would be under the Civil
  Procedure Code. Hence, there is no reason why inherent jurisdiction of
  the Court cannot be exercised for providing interim maintenance. If a
  deserted wife, widowed daughter-in-law, minor children and aged parents
  are not provided with interim maintenance, it would cause lot of
  hardship for a long period. The entire purpose of the enactment would
  be defeated because of the proverbial delays in disposal of cases
  resulting in grave hardship to the applicants who may have no means to
  survive until final decree is passed. There is no provision under the
  Hindu Adoptions and Maintenance Act or under the Civil Procedure Code
  that interim maintenance cannot be granted; there is no provision under
  the said Act which would meet the necessities of the case in question.
  Therefore, for doing real and substantial justice, Court can exercise
  power under section 151 of the Civil Procedure Code for grant of
  interim maintenance. It would also prevent abuse of the process of the
  Court.

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4. Even in proceedings under section 125 of the Code of Criminal
  Procedure, in the case of Savitri v. Govind Singh Rawat, 1986 Cri. L.J.
  411, the Court held as under :–

“Having regard to the nature of the jurisdiction exercised by a
  Magistrate under section 125 of the Code, we feel that the said
  provisions should be interpreted as conferring power by necessary
  implication on the Magistrate to pass an order directing a person
  against whom an application is made under it to pay a reasonable sum
  by way of interim maintenance, subject to the other conditions
  referred to, pending final disposal of the application. In taking
  this view we have also taken note of the provisions of section
  7(2)(a) of the Family Courts Act, 1984 (Act No. 66 of 1984) passed
  recently by Parliament proposing to transfer the jurisdiction
  exercisable by Magistrates under section 125 of the Code to the
  Family Courts constituted under the said Act.”

For arriving at the above conclusion, the Court has observed that every
  Court must be deemed to possess by necessary intendment all such powers
  as are necessary to make its orders effective. The Court further
  observed that whenever anything is required to be done by law and it is
  found impossible to do that thing unless something not authorised in
  express terms be also done, then that something else will be supplied
  by necessary intendment. In a civil suit filed for maintenance on the
  basis of the law applicable under the Hindu Adoptions and Maintenance
  Act, such power is required to be exercised. In our view, there is no
  reason not to apply the ratio laid down by the Supreme Court in
  Savitri’s case (supra) to the question involved in the present case.

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5. Re: The Second Question :

In our view, even if matrimonial proceedings are pending between the
  parties, it is not the requirement that the application for interim
  maintenance must be made only to the Family Court under the provisions
  of section 24 of the Hindu Marriage Act. Once we arrive at the
  conclusion that an application under section 18 of the Hindu Adoptions
  and Maintenance Act is maintainable during the pendency of proceedings
  under the Hindu Marriage Act, then, obviously, the result would be that
  the application (or interim maintenance could be filed before the Court
  dealing with the right arising under provisions of section 18 of the
  Hindu Adoptions and Maintenance Act.

6. With regard to the provisions of section 18 of the Hindu Adoptions
  and Maintenance Act and provisions of the Hindu Marriage Act, the Apex
  Court, in the case of Chand Dhawan v. Jawaharlal Dhawari, 1993(3)
  Supreme Court Cases 4061, has held that, without affection or
  disruption of the marital status, a Hindu wife sustaining that status
  can live in separation from her husband, and whether she is living in
  that state or not, her claim to maintenance stands preserved in
  codification under section 18(1) of the Hindu Adoptions and Maintenance
  Act. She may also be entitled to relief under section 125 of the Code
  of Criminal Procedure; but this is an alternative measure. The Court
  clarified that, in a petition under the Hindu Marriage Act, the Court
  is empowered to grant interim maintenance; but, in those cases where
  the marital status is to be affected or disrupted, then the Court would
  pass orders for maintenance. In other cases, the Hindu Adoptions and
  Maintenance Act would be applicable. Hence, in our view, even if
  matrimonial proceedings are pending between the parties in the Family
  Court, it is not necessary that for getting interim maintenance, an
  application must be made to the said Court under the provisions of
  section 24 of the Hindu Marriage Act.

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7. We, however, make it clear that, once the interim maintenance is
  granted either under section 24 of the Hindu Marriage Act or under
  section 18 of the Hindu Adoptions and Maintenance Act, then, there is
  no question of entertaining the application under the other Act. This
  would avoid multiplicity of proceedings, because the criteria for
  awarding maintenance under both the provisions would be the same.

8. Reference stands disposed of accordingly.

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