Mohd. Zafarullah Khan Vs. Yasmeen Khan and ors. - Court Judgment

Radhakrishna Rao, J.

1. The 1st respondent is the wife of the petitioner and respondents 2 and 3 are their daughters born out of their wedlock. The 1st respondent is living separately since 1987 along with respondents 2 and 3 after declaration of divorce by the petitioner on 11-6-1986. The respondents filed a suit OS 91 of 1988 on the file of the V Additional Judge, City Civil Court, Hyderabad for maintenance and also for past arrears of maintenance of Rs. 1,08,00/-. Pending disposal of the suit, they filed IA No. 337 of 1989, out of which this revision arises, under Section 151 CPC claiming interim maintenance at Rs. 3,000/- per month to the 1st respondent and Rs. 1,500/- each to her daughters. The husband resisted the application on the ground that the Court has no jurisdiction to award interim maintenance under Section 151 CPC. The learned Additional Judge rejected the contention of the husband and awarded Rs. 2,000/- per month for a period of 3 months i.e., Iddat period as interim maintenance to the mother and Rs. 750/- per month each to the minor daughters from the date of the petition to maintain themselves during the pendency of the main suit considering the social status of the parties. Aggrieved against that order, the husband of the 1st respondent filed this revision petition.

2. The husband is having one house in Jubilee Hills within the municipal limits of Hyderabad Municipal Corporation and one house at Kazipet and a dairy farm near Vikarabad. The marriage between the petitioner and respondent No. 1 herein was celebrated in the year 1977 and it ended in divorce on 11-6-1986. The petitioner also gave two cheques for Rs. 2 lakhs in the name of respondents 2 and 3 i.e., minor daughters but they were dishonoured. So a complaint under Section 420 IPC was filed and it was registered as CC No. 661 of 1987 on the file of 9th Metropolitan Magistrate, Hyderabad. The wife's case is that, she is not in a position to maintain herself and her two minor daughters. The fact that she is entitled to the maintenance for a period of three months during the Iddat period under Muslim Law has to be determined only in a full dressed trial and Court cannot be permitted to decide the same in an interlocutory application under Section 151 CPC. If any amount is granted it amounts to an order which can properly be granted only by the ultimate determination in the suit finally. The 1st respondent after divorce is also running a Beauty clinic and she is getting some income and that amount also has to be ascertained.

3. With regard to the minors is concerned, they are now under the custody of their mother. The petitioner herein also filed OP No. 158 of 1987 for the custody of his daughters and the same is pending on the file of the Additional Chief Judge City Civil Court, Hyderabad. Pending disposal of the rival claims made by both the husband and wife, the Court has to take note of the fact of maintenance of those minor children. Even if the custody is given as on today to the husband, he is entitled to maintain the children and he himself wanted to have the custody of the two minor children. Now as they are in the custody of their mother and as the two cheques for Rs. 2 lakhs each given by the husband in their favour have been dishonoured, prima facie it has to be found that they require maintenance from their father. Even if they file a petition under Section 125 Cr. P.C. the daughters are entitled to claim maintenance. When they filed a suit for maintenance and when there is no definite provision in the Civil Procedure Code to file an application just like the one now filed, can the parties file an application for the grant of interim maintenance. It is a settled principle of law that either in an application filed under the Guardian and Wards Act or a petition under the Hindu Marriage Act or a petition for. maintenance under Section 125 Cr. P.C., the minor children are entitled to claim interim maintenance pending disposal of those proceedings and the Court are competent to award interim maintenance by taking into account the status of the parties. It is only to prevent the vagrancy multiplicity of litigation interim maintenance is being provided. There is no provision in the Code of Civil Procedure for the grant of interim maintenance. But the Courts are resorting to grant interim maintenance. Even when there is no definite provision and when the minor children file a suit for maintenance, the Courts are at liberty to award interim maintenance but it should not be detrimental to the income of the other party and it should reflect the minimum possible so that it may not be a burden to the otherside.

4. With regard to the maintainability of the application, the learned counsel for the petitioner, has relied upon a Division Bench decision of this Court reported in Gorivelli Appanna v. Gorivelli Seethamma, : AIR1972AP62 wherein this Court followed the view expressed in Mahomed Abdul Rahman v. Tajunnissa Begum, : AIR1953Mad420 dissented the view expressed by the Calcutta High Court in Gouri Gupta v. Tarani Gupta, : AIR1968Cal305 , and distinguished the view expressed by the Gujarat High Court in Gulab Chand v. Kurji Bhagwanji, : AIR1962Guj229 and that of the Madras High Court in Subbayya v. Kandaswami, AIR 1935 Madras 103. The Division Bench held :

'The inherent power recognised by Section 151 cannot extend to matters other than procedural. The court cannot resort to the provisions of Section 151 to encroach upon substantive rights of parties or, in an interlocutory application, upon matters which await adjudication in the suit. No order under Section 151 Civil Procedure Code can be made except 'in aid of the suit'. Such an order may be a step towards obtaining a final adjudication in the suit or it may be with a view to 'rendering the judgment effective, if obtained'.

5. It is also observed by the learned Judges that Order 12, Rule 6 CPC does not contemplate the passing of interim orders but empowers the Court to pass judgments and decrees in respect of admitted claims pending disposal of adjudication of the disputed claims in a suit. It is true that in that case the Division Bench is of the view that no orders under Section 151 C.P.C. can be made except 'in aid of the suit'. But in practice and by following the decisions in other cases, a different course is being adopted by the Courts. It is an admitted fact that no provision has been made in the Code of Civil Procedure to claim interim maintenance pending disposal of the suit for maintenance. But can we say that when the father himself admits that respondents 2 and 3 are his daughters and he also claimed custody of his minor daughters and filed an application to that effect, he is entitled to plead that they are not entitled for interim maintenance in a suit filed by them claiming maintenance. Even if custody is granted after the final adjudication in the O.P. filed by the father, till that period they have to be maintained and it is in that context we have to take a humanitarian view that in those circumstances interim maintenance can be granted to the minor daughters.

6. In Bai Dahi v. Shankarbhai Deojibhai, : AIR1954Bom214 , while considering the scope of Section 151 C.P.C. the Bombay High Court observed that the Courts have very wide powers to restore suits under Section 151 CPC independently of Order 9 Rule 9 CPC and the Courts should be quicker to act under Section 151 CPC where a minor's suit is dismissed. The Supreme Court in M/S. Jaipur Mineral Development Syndicate, Jaipur v. The Commissioner of Income Tax, New Delhi, : [1977]106ITR653(SC) while considering the inherent power of the High Court in a case where the High Court declined to answer reference for absence of party and non-filing of paper book and where an application has been filed for rehearing observed that 'the High Court has the inherent power to recall its earlier order and dispose of the reference on merits and there is nothing in any of the provisions of which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits'. It is also held that the Courts have power, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court to hold otherwise would result in quite a number of cases in gross miscarriage of justice.

7. In Mahomed Abdul Rahman v. Tajunnissa Begum, (supra) the Madras High Court observed that in a suit for maintenance by the wife, where the claim is hotly contested, an order for payment of interim maintenance is without jurisdiction. In the case now before us, the wife has already divorced and the question of payment of amount due during Iddath period falls for consideration. So far as the minor daughters are concerned, it cannot be said that it is a hotly contested case, since their father himself claimed the custody of his daughters in a separate O.P. which is now still pending. There are many a decision rendered by the Supreme Court holding that Section 151 CPC can be invoked where there is no specific provision in the Code to pass an order for the ends of justice or to prevent the abuse of the process of the Court and to hold otherwise would result in miscarriage of justice.

8. In a recent decision in Khadal Penthi v. Hulash Dei, : AIR1989Ori137 , the Orissa High Court had occasion to consider the following points :

'(i) Whether the Court would be entitled to grant interim maintenance in a case where the marital relationship is denied :

(ii) Whether in the absence of any provisions in either of the two Acts, namely : 'The Hindu Adoptions and Maintenance Act' and 'The Hindu Marriage Act', the Court can exercise jurisdiction under Section 151 CPC to grant the interim relief of awarding maintenance.'

While answering these questions, the Orissa High Court held :

'From the ratio of the three decisions of this Court mentioned above, it is clear that this Court has been consistently taking the view that in a suit filed by the wife for recovery of maintenance from her husband, the Court has power under Section 151 of the Civil Procedure Code to grant interim maintenance during the pendency of the suit, but exercise of that power will depend upon facts and circumstances in each case. Some of the relevant matters to be considered are whether there are prima facie materials to establish marital relationship and whether the wife is able to make out a case for grant of interim maintenance. In taking this view, this Court has not accepted the extreme views taken by some other High Courts, one being that the Court has no power at all under Section 151 to grant interim maintenance in a suit for recovery of maintenance and the other that the wife has the right to get interim maintenance notwithstanding the denial of marital relationship between her and the defendant.'

9. In Jaipur Mineral Development Syndicate's case (supra) the Supreme Court has indicated that every Court is constituted for the purpose of doing justice according to law and must be deemed to possess a necessary corollary and as inherent in its very constitution all or such powers as may be necessary to do the right and to undo a wrong in the course of administration of justice. There is no express provision in any law or in the CPC for grant of interim maintenance in a suit for maintenance. In such cases the court would have inherent powers to pass such order as may be necessary to meet the ends of justice.

10. From the ratio of the decisions cited above and the interpretation made by the Supreme Court with regard to the application of Section 151 CPC. I am clearly of the view that interim maintenance pending disposal of the suit for maintenance can be granted, but it should normally be exercised sparingly by granting the bearest minimum possible without causing any hardship to the defendant. I am also fortified in my view by the opinion expressed by Venkataramaiah, J., (as His Lordship then was) in Savitri v. Govind Singh Rawat, (1985) 4 Supreme Court Cases, 337 wherein it was held :

'The Civil Courts have inherent power to grant interim maintenance pending disposal of the suit for maintenance. The point for consideration is whether the magistrate can also make such an interim order or not.'

11. Now on facts, the wife is working as a beautician and earning something. So far as the minor daughters are concerned, the petitioner has earned a huge amount staying in foreign countries and it is not difficult for him to pay at least Rs. 500/- per month to each of his daughters according to the status of the minor daughters which they enjoyed prior to the separation of their parents. It is the common ground of the wife that the husband is screening the properties while the husband pleads that he has to maintain his old parents and unmarried brothers and sisters. Having regard to the facts and circumstances of this case and considering the potentialities and status of the parties, I think Rs. 500/-per month each to respondents 2 and 3 would be the reasonable amount towards their maintenance pending disposal of the suit.

12. The order of the lower Court granting Rs. 2.000/- per month to the 1st respondent herein for a period of 3 months i.e., Iddat period as interim maintenance, is set aside as the same has to be determined after a full dressed trial at the time of the final disposal of the suit. The interim maintenance granted to respondents 2 and 3 is reduced to Rs. 500/-per month each.

13. The revision petition is partly allowed. No costs.