B. Chinnasamy vs Kannammal @ Muniammal and Others

Abdul Hadi, J.—This civil revision petition is against order in I.A. No. 286 of 1989 in O.S. No. 182 of 1989, granting interim maintenance

to the 1st respondent, who is the wife and respondents 2 to 4, who are the minor daughters, of the petitioner herein, pending disposal of the said

suit for their maintenance and for marriage expenses of respondents 2 to 4. The said I.A. has been filed u/s 18 of the Hindu Adoption and

Maintenance Act and Section 151, C.P.C.

The trial court awarded Rs. 100 per month to each of the said daughters who are aged above 15, 1 and 2 1/2 years and Rs. 150 to the said

wife by way of interim maintenance. Against the said order this civil revision petition has been filed by the husband of the 1st respondent and father

of the other respondents.

The learned Counsel for the petitioner submitted that the Court has no jurisdiction to award interim maintenance, that Section 18 of the said Act

does not speak of interim maintenance and that the court could grant maintenance decree only after the trial of the suit. The learned Counsel cited

Hajee Mahomed Abdul Rahman Vs. Tajunnissa Begum and Another, , Gorivelli Appanna Vs. Gorivelli Setthamma, and Ramchandra Behera and

Others Vs. Smt. Snehalata Dei, . But none of these decisions holds absolutely that the Court has no power at all to grant interim maintenance.

Hajee Mahomed Abdul Rahman Vs. Tajunnissa Begum and Another, , referred to above only pointed out that an order granting interim injunction,

pending disposal of the suit in favour of the plaintiff, whose status as lawfully wedded wife was hotly contested by the defendant was one passed

without jurisdiction. But, in the present case, admittedly the 1st respondent is the wife of the petitioner and the other respondents are the daughters.

So, Hajee Mahomed Abdul Rahman Vs. Tajunnissa Begum and Another, , referred to above, has no application. In fact, in Deivasigamani Udayar

Vs. Rajarani Ammal, , it has been held that where the relationship between the parties is admitted, but the claim is contested by the husband, the

Court has jurisdiction to grant interim maintenance, notwithstanding the absence of a specific provision in the Hindu Adoption and Maintenance

Act and that the grant of maintenance ultimately is a matter of course once the status of parties is admitted. In the said decision, the above said

earlier decision in Hajee Mahomed Abdul Rahman Vs. Tajunnissa Begum and Another, , was distinguished on the ground that in Hajee Mahomed

Abdul Rahman Vs. Tajunnissa Begum and Another, , the husband denied the marriage. The learned Judge, who decided Deivasigamani Udayar

Vs. Rajarani Ammal, referred to above, rightly says that ""this circumstance explains the ultimate conclusion of the learned Judges in Hajee

Mahomed Abdul Rahman Vs. Tajunnissa Begum and Another, , in refusing to order interim maintenance pending suit."" Likewise in Deivasigamani

Udayar Vs. Rajarani Ammal, , referred to above, the above referred to Gorivelli Appanna Vs. Gorivelli Setthamma, , was also distinguished in

Kanneganti Venkata Subbayya (Died) and Others Vs. P. Ranga Rao Tobacco Co. and Others, , referred to above, the husband contested the

wife''s very right to maintenance in the suit and submitted that he had already obtained a decree for restitution of conjugal rights against his wife and

that no award of maintenance could, therefore, he made against him. In that context only, the learned Judges of the Andhra Pradesh High Court

held that inherent powers u/s 151, C.P.C. could not be invoked for granting interim maintenance.

It must also be noted that with reference to the interim relief of temporary injunction pending suit, which is specifically provided under Order 39,

Rules 1 and 2, C.P.C., the Supreme Court has held that the Court has got inherent power to issue temporary injunction even in circumstances not

covered by the provisions of Order 39, C.P.C., if the Court is of opinion that the interest of justice required that issue of such interim injunction.

Vide Manohar v. Seth Hiralal (1953) 2 M.L.J. 823: 1953 S.C.J. 734 : AIR 1952 S.C. 527 C.P.C. also provides that in Order to prevent the

ends of justice from being defeated, the Court may, ""if it is so prescribed,"" make such other interlocutory orders as may appear to the Court to be

just and convenient. In the above said Supreme Court decision, in the light of Section 94(c), C.P.C. which provides for temporary injunction has

interpreted the above said expression if it is so prescribed"" and held that when the circumstances are not covered by Order 39, C.P.C. or by any

Rules under Code the Court has inherent jurisdiction to issue temporary injunction in the interest of justice.

Even in Ramchandra Behera and Others Vs. Smt. Snehalata Dei, referred to above, cited by the learned Counsel for the petitioner, the learned

Judges only observed as follows:

We are inclined to agree with the ratio indicated by the Madras High Court in the case reported in Hajee Mahomed Abdul Rahman Vs. Tajunnissa

Begum and Another, , as layings down the ordinary rule. We agree that there may be cases where taking the extraordinary aspects into

consideration, the court may proceed to exercise inherent powers to grant interim relief. It is not appropriate to set limitations on court''s inherent

powers by indicating circumstances where it can be and where it cannot be exercised.

The above observation was also specifically pointed out in a latter decision of the same court in Gajapati Naik Vs. Dukhnashini Naik and Others, ,

which was also a case, where the relationship of husband and wife was admitted, and that is why it was held therein as follows:

...in cases where the relationship between the spouses is not in challenge and there is no exceptional circumstances of a prima facie nature against

such relationship the jurisdiction u/s 151, C.P.C. is available to be exercised.

The position is further clear from the following observation of the Division Bench in Ramchandra Behera and Others Vs. Smt. Snehalata Dei, ,

itself.

In the case before us, there is a decree stating against the plaintiff and the marital relationship has been judicially terminated. The burden lies on the

plaintiff to extricate herself from the bar of res judicata by proving want of territorial jurisdiction of the court passing the earlier decree and by

establishing perpetration of fraud in the matter of obtaining the decree. Until she is able to establish these, the decree of divorce binds her and she

cannot be taken any longer to be a wife. We find that the husband has already married. In this setting it would not at all be appropriate to sustain

the order of grant of interim maintenance.

The learned Counsel for the petitioner next submitted his objection regarding the quantum of maintenance awarded. Here again, I do not find

any error of jurisdiction. In Ex. A-2, the deposition of the petitioner in the Criminal-Court proceedings for maintenance, the petitioner admits that

the he retired from Army in February, 1988 and he got Rs. 50,000 as retirement benefit, that he is also getting Rs. 360 per month as pension and

that he has one acre of land, a house and a plot. No doubt he denied that the value of the above said house was Rs. 1,00,000 and the value of the

above said plot was Rs. 50,000. Yet in the light of the above evidence, I do not think that the interim maintenance awarded, viz., Rs. 100 for each

of the daughters and Rs. 150 for the wife was in any way unreasonable. At any rate, as I said earlier, there is nothing for me to interfere u/s 115,

C.P.C.

No doubt, the learned Counsel for the petitioner pointed out that the 1st respondent-wife herself was in possession of another land and earning

income therefrom. But, with reference to this other land, it is not clear who is the actual owner of the said property and who is in enjoyment

thereof. The petitioner himself has filed a suit O.S. No. 568 of 1988 contending that the property is his. Even with reference to possession, he has

given different versions in his own evidence, in the above said criminal proceeding for maintenance filed by the wife. In one place, he says that the

land was in the possession of his brother-in-law and in another place, he says that the land was in his possession. In yet another place he says that

the land was in the possession of his wife.

One other factor also has to be noted. In the above said I.A. No. 286 of 1989 filed by the wife for interim maintenance, while the applicant-wife

has filed on affidavit in support of her claim for maintenance, making several specific allegations for claiming maintenance, the petitioner herein did

not even file his counter affidavit, but only filed a verified counter statement. The learned Counsel for the petitioner even argued that the wife is

leading an adulterous life and hence she is not entitled to maintenance. But even in the above counter statement. I do not find any such averment.

On the other hand, there is a specific averment in the supporting affidavit of the applicant-wife that the husband was having a concubine by name

Chennammal of Gollepatti village. This averment contained in the supporting affidavit of the applicant-wife was not repudiated by filing a counter

affidavit but as stated above, only a counter statement has been filed.

There is, therefore, absolutely no merit in this civil revision petition and hence it is not admitted, but is dismissed.