Shri Arun Kumar Deb vs Smti. Himani Deb and Others

S.N. Phukan, J.—This petition is directed against the judgment and order dated 9.1.87 passed by the learned Assistant District Judge, Karimganj by which the learned Court affirmed the order dated 12.12.86 passed by the learned Munsiff No. 1, Karimganj in Misc. Case No. 101/86.

The opposite party No. 1. herein, on behalf of herself and also on behalf of her minor children filed the suit in question before the learned Munsiff against the Petitioner, herein for maintenance u/s 18 of the Hindu Adoptions and Maintenance Act, 1956 It is not disputed that the present Petitioner is the husband of opposite party No. 1 and opposite parties No. 2, 3, and 4 are their children. A petition for interim relief was filed and the learned trial court by the impugned order granted an interim maintenance of Rs. 300/- per month to be paid by the Petitioner.

The first contention raised by Mr. Bhattacharjee is that Sub-section (2) of Section 18 of Hindu Adoption and Maintenance Act, 1956 does not empower the Court to pass any interim order grafting such maintenance. In support of his contention Mr. Bhattacharjee has drawn my attention to a decision of the Orissa High Court in Ramchandra Behera and Others Vs. Smt. Snehalata Dei, In that case their Lordships held that under the aforesaid Act the Court has no power to grant interim maintenance allowance. However, the court observed that;

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 thus appears that their Lordships also kept it open to grant interim relief by invoking the inherent powers in appropriate cases, Mr. Bhattacharjee has also placed reliance in Laxmi Sahuani Vs. Maheswar Sahu, AIR 1985 Ori 11. On persual of the report it appears that in that case the wife was living separately from her husband without existence of any ground mentioned in Sub-section (2) of Section 18 of the Act and accordingly it was held by the learned Judge that she was not entitled for any interim relief. But that is not so in the present case. There is clear allegation that the Petitioner/deserted the opposite parties.

In Nimai Chand Jain v. Smt. Lila Jain AIR 1988 Cal 405 , it was held by the Calcutta High Court that the Court has power to make interlocutory orders in aid of a suit. In other words, the Court has power to grant interim maintenance. Calcutta High Court also in Tarini Gupta Chowdhury Vs. Sm. Gouri Gupta Chowdhury, held that u/s 18 of the aforesaid Act the wife has right to claim maintenance pendente lite.

In Ramchandra Behara (supra) as stated earlier it was held that in apporpriate case the court can grant interim maintenance allowance by invoking inherent powers. I respectfully agree with the law hid down by the Calcutta High Court in Nimal Chand Jain (supra) and Tarani Gupta Choudhury (supra) and hold that the Court can definitely grant Interim maintenance allowance during the pendency of a suit filed under the Hindu Adoptions and Maintenance Act, 1955.

Another important aspect which needs consideration is that maintenance is granted for means of sustenance i.e. for living, food, clothing etc. In the event interim maintenance allowance is not granted during the pendency of the suit, it would be impossible for the wife and children to maintain themselves thereby causing hardship which is not the intention of the legislature.

For the reasons stated above, I hold that the power to grant maintenance under the aforesaid Act also includes power to grant interim maintenance allowance.

On perusal of the order passed by the learned Munsiff it appears that there is nothing to show that the learned trial court in fixing the interim allowance of Rs. 300/- per month took into consideration the capacity of the Petitioner to pay the amount. Mr. Bhattacharjee has urged that the Petitioner is getting a salary of Rs. 400/- or so per month and, as such, the amount is excessive. On the other band, Mr. Sharma disputes this fact and further submits that unless interim relief is granted it would cause great hardship to the wife and children as they are not in a position to maintain themselves. There is no dispute in the Bar that at the time of issuance of rule in this present petition the Court stayed the impugned order on the condition that the Petitioner shall continue to pay Rs. 150/- per month. I am of the opinion that unless some amount is paid per month to the opposite parties by the present Petitioner it would cause great hardship to them.

For the reason stated above, I set aside the impugned judgment and order passed by the learned Assistant District Judge and also the order dated 12.12.86 passed by the learned Munsiff. The case is remanded to the learned trial court to decide the quantum of interim maintenance allowance per month keeping in view the provisions of Section 60 of the CPC and also the financial capacity of the Petitioner. This will be done within a period of three months from the date of appearance of parties before the learned Munsiff. I direct both the parties to appear before the learned Munsiff No. 1, Karimganj on 9th of May, 1988 and to obtain necessary orders. During the interim period the Petitioner shall continue to pay a sum of Rs. 150/- per month to the opposite parties till the learned Munsiff decides the quantum of monthly interim maintenance allowance vis-a-vis total income from salary and other sources of the Petitioner.

With the above direction the petition is disposed of. No costs. Let the records be transmitted immediately.