Ravindernath Sharma vs Nagesh Sharma alias Rinkoo

H.L. Anand, J.

(1) These two Revision Petitions are directed against a common order of the Additional District Judge, Delhi, granting interim maintenance to the wife and minor child of the petitioner,during the pendency of their claims for maintenance, under Sections 18 and 20 respectively of the Hindu Adoptions and Maintenance Act.1956, for short, the Act.

(2) The impugned order is assailed on two grounds, namely :-

(1)That there was no jurisdiction in the Court to grant interim maintenance in the absence of a specific provision in the Act in that behalf.

(2)In any event, the conditions requisite for the grant of interim relief were not satisfied and the order was. Therefore, not justified.

(3) Sections 18 and 20 of the Act are in these terms :-

"18.(1) Subject to the provisions of this section, a Hindu wife ,whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2)A Hindu wife shall be entitled to live separately from herhusband without forfeiting her claim to maintenance-

(A)if he is guilty of desertion, that is to say, of abandoningher without reasonable cause and without her consent oragainst her wish, or of willfully neglecting her :

IF he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

IF he is suffering from a virulent form of leprosy;

IF he has any other wife living;

IF he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere ;

IF he has ceased to be a Hindu by conversion to another religion ;

If there is any other cause justifying her living separately."

"20.(1) Subject to the provisions of this section a Hindu is bound ,during his or her lifetime, to maintain his or herlegitimate or illegitimate children and his or her aged or infirm parents.

(2)A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child isa minor.

(3)The obligation of a person to maintain his or her agedor infirm parent or a daughter who is unmarried extendsin so far as the parent or the unmarried daughter, as thecae may be, is unable to maintain himself or herself out of his or her own earnings or other property.

Explanation. - In this section "parent" includes a childlessstep-mother."

(4) True the Act does not contain any specific provision conferring power on the Court to. grant interim maintenance, but that would not be destructive of the power. If the Court had one, whether inherent or otherwise ,in aid of proceedings pending before it, to grant interim relief in certain circumstances. In industrial law, the power of the Tribunal to grant interim relief, in aid of the final relief, which the Tribunal is entitled to give, is very well recognised, if there are grounds which would justify it provided that it is not the whole of the relief(1). While there is no decision in which the principles laid down bythe Supreme Court with regard to the grant of interim relief in industrial law were applied to civil proceedings or proceedings under the Act, a review of the cases that arose under the Act itself (2) indicates a preponderance of judicial opinion in favor of the proposition that there was ample jurisdiction in a Court, seized of a claim for maintenance by a wife, aged or infirm parents or a minor child, to grant the interim relief during the pendency of the proceedings, although there has been a sharp difference of opinion as to whether such a power is in the nature of an inherent power of the Court or a power to act in aid of the relief that it is entitled to give in any causeand, Therefore, ancillary to the substantive provisions of the Act. The question as to the source of the power is, however, wholly academicfor the purpose of the present case. Some of the cases which have taken the contrary view holding that there was no power in the absence of a specific provision to grant interim maintenance do not apear to me, with respect, to represent the true legal position (3). I have, Therefore, no hesitation in holding that the Court had ample power to grant interim maintenance.

(5) As for the conditions for the grant of interim maintenance, the preponderance of judicial opinion appears to be in favor of the proposition that a prima facie case must be made out for grant of such arelief, although some of the Courts have expressed the view that If the relationship between the husband and wife is not disputed, the right to interim maintenance would follow as a matter of course It,however, appears to me that with regard to the question of the conditions for the grant of interim maintenance, the position that obtains u/s 18 would be different than the one that obtains u/s 20 of the Act.

(6) In the case of a wife, sub-section (1) of Section 18 appears to confer an unfettered right to maintenance and the phraseology of this sub-section indicates that this right is limited to maintenance within the matrimonial home. This right is also subject to the provisions of the Section and a reference to sub-section (2) of Section 18 indicates that when it comes to the right to maintenance with the right to live separately, it is not the right to which a wife is entitled as a matter of course since the right under this sub-section is the right to claim maintenance even while living separately and is, Therefore, subject to any of the conditions laid down in clauses (a) to (g) of the subsection being satisfied. Sub-section (3) of that Section is a disqualifying provision ,which disentitles the wife to separate residence and maintenance in case of unchastity or conversion. On the other hand. Section 20 which confers the right of maintenance, inter alia, on a minor child does not lay down any condition whatsoever and the moment minority and the relationship are admitted, the right to maintenance flows as also the ancillary right to interim maintenance.

(7) That being the position, the grant of interim maintenance to the minor would be unassailable because he is only four years of ageand is at present living separately from the father with the mother, who has sought shelter in the house of her parents. Whether or not the mother is being unreasonable in living away from the mathome, it would have no impact on the right of the minor to maintenance .

(8) So far as the claim of the wife is concerned, there is somein the contention raised on behalf of the petitioner that the maintenance had been awarded without a finding that the witprima facie case. This difficulty is, however, resolved when one look sat the totality of the circumstances. According to the wife,compelled to leave the matrimonial home and the maintenenance is therefore ,sought on the-ground either of desertion or of While it is true that the Court below has not devoted any attention the question if the allegations made by the wife were well-fondedso as to entitle her to interim relief, some of the admitted circumstances would indicate that the wife has a prima facie case for the relieprime facie, a Hindu wife with a child of a tender age, and with no independet source of income, would not ordinarily leave the matrimonial home and take refuge in her parental home unless there were some compulsions .If such an inference could be justified, the failure of the Court below to specifically deal with the question of prima facie natureof the case would not introduce such infirmity into the order be capable of vitiating it.

(9) The grant of interim maintenance to the wife and the childmust, Therefore, be upheld, even though the Court would be entitlednotwithstanding its decision and of this Court, to return a contrayfinding on the trial of the two petitions should the material on recordjustify it.

(10) In the result, the petitions fail and are hereby dismissed the respondents would also have their costs.