Sukhdev Singh and others vs Sham Kaur and another

P.C. Pandit, J.—Sham Kaur brought a suit u/s 18 of the Hindu Adoptions and Maintenance Act, 1956, hereinafter called the Act, against her husband Asa Singh for the grant of maintenance to her. In the said suit, she also impleaded Sukhdev Singh and three others, defendants Nos. 2 to 5, because it was alleged that Asa Singh, defendant No. 1, gifted his entire property in their favour. During the pendency of the suit, she made an application for the grant of interim maintenance to her @ Rs. 100/- per month.

This application was opposed by the defendants, but the same was granted by the trial Judge, who allowed Rs. 50/- per mensem to Sham Kaur with effect from 6th March, 1971 the date on which she had moved the said application. The learned Judge further held that the maintenance would be a charge on the property in the hands of defendants Nos. 2 to 5. Against this order, Sukhdev Singh and others have come in revision to this Court.

The first point for consideration is as to whether the trial Judge had the jurisdiction to grant interim maintenance at all or not, because the argument was that under the Act, there was no provision for allowing such a maintenance.

As I look at the matter, if the Court can decree the suit and allow maintenance to the wife, there is no reason as to why the Court, under its inherent powers, cannot grant interim maintenance during the pendency of the said suit, if the circumstances of the case so require If it is proved to the satisfaction of the Court that the wife is not possessed of any means for her maintenance and the husband can well afford to pay the same, there is no reason as to why the Court should not be able to allow it to her. It could not be said that since there was no specific provision under the Act for the grant of an interim maintenance, therefore, the Court is powerless in this respect. As I have said, if ultimately the Court is authorised to decree the suit and allow permanent maintenance to the wife, there is no reason why the Court should not have the jurisdiction to give interim relief to her during the pendency of the said suit.

This apart, there is a Division Bench authority of this Court in Puran Singh and others v. Mst. Har Kaur, 1970 Curr. LJ 648 wherein it was held that where the marital status was admitted, it was the duty of the husband to maintain the wife, no matter even if she was not prepared to live with him or perform the conjugal duties. If, however, she had become unchaste or had remarried, then, in that event there would be no duty on the part of the husband to maintain her In Puran Singh''s case, an interim maintenance was granted during the pendency of the suit and it was held by this Court that the order passed by the trial Court in favour of the wife was not without jurisdiction. That being so, there is no merit in the first point.

The second point is whether the maintenance allowance could be made a charge on the land of Asa Singh in the hands of defendants Nos. 2 to 5. The contention was that u/s 28 of the Act, the right to receive maintenance out of an estate by a dependant, who had such a right could be enforced against the transferee of that estate, if the transferee bad notice of his right or if the said transfer was gratuitous. In the instant case, the wife was not a dependant, because the dependants under the Act had been mentioned in section 21 thereof, and she did not figure there.

It is true that a wife would not be covered by the definition of "dependants" given in section 21, but u/s 39 of the Transfer of Property Act, the wife could receive maintenance out of the property, even though the same had been gifted by Asa Singh. The said section reads:

Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

A bare reading of the section will show that if a third person has a right to receive maintenance out of some property and the wife, in the instant case, will be covered by this clause, then such a right can be I enforced against the transferee of that property, if the transfer I is gratuitous, as is the position in the instant case. I, therefore hold that the Court below was right in declaring the interim maintenance of Sham Kaur as a charge on the estate of Asa Singh in the hands of defendants Nos. 2 to 5.

The result is that this petition fails and is dismissed. Since the respondents are not represented before me, there will be no order as to costs.