Makhan Singh vs Jagdish Kaur and Others

Jawahar Lal Gupta, J.—This is a revision petition directed against the order of the Senior Sub Judge, Amritsar, by which interim maintenance was granted to the respondents. It is challenged on the ground that the Trial Court had no jurisdiction to grant interim maintenance under the Hindu Adoption and Maintenance Act, 1956.

Mr. B.R. Mahajan learned Counsel for the petitioner relies on the judgment of this Court Sodagar Singh v. Harbhajan Kaur (1977) 79 PLR 506. It has been categorically held that the Hindu Adoption and Maintenance Act, 1956 "does not authorise the passing of any order for the payment of litigation expenses and maintenance allowance pendente lite."

Mr. Justice Chinnappa Reddi while recording judgment of a Division Bench of the Andhra Pradesh High Court in Gorivelli Appanna Vs. Gorivelli Setthamma, , observed as under:

Section 18 merely clothes a Hindu wife with the right to be maintained by her husband. It may be more correct to say that Section 18 recognizes 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 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. All 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 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 skipping 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 Section 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 wife 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 Section 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 add that an order awarding interim maintenance was an order ''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.

(Emphasis supplied)

Same view was taken in Ramchandra Behera and Others Vs. Smt. Snehalata Dei, . It was observed by the court as under:

In a suit for maintenance which is contested, the court has no power to award interim maintenance u/s 18 of the Hindu Adoptions and Maintenance Act Section 18 does not authorise the award of interim maintenance pending decision on the claim to maintenance in contest in the suit. The right of wife 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.

It is no doubt correct that the above observations have been made in the context of Section 18. Provision contain in Section 19 is similar. There is no specific provision for the grant of interim maintenance even u/s 19.

Mr. D.S. Jandiala, learned Counsel for the respondents has not brought any judgment taking a contrary view to my notice.

In view of the above noted decisions, I am of the view that the learned trial court has acted with material irregularity in passing an order of interim maintenance in favour of the respondents. The order dated October 22, 1990 passed by the Senior Sub Judge, Amritsar is accordingly set aside. Keeping in view the fact that the case has been pending since 1984, the learned trial court is directed to decide it within three months from the date of the receipt of the copy of this judgment. In view of the circumstances of the case, there be no order as to costs.