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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 3232 OF 2010
Mohammed Anis-Ul-Haq s/o
Manzul-Ul-Haq,
aged about 33 years,
occupation - Medical Practitioner,
r/o c/o Sarawar Abad, Yashodhara
Nagar, Near Dr. Rehman,
Kamptee Road, Nagpur. ... PETITIONER
Versus
Asma Anjum w/o Anis-Ul-Haq,
aged about 28 years,
occupation - Housewife,
r/o Plot No. 27, Shakilbhai
Apartment, Teachers' Colony,
Jafar Nagar, Nagpur.
AND
At Lumbani Nagar, Near Buddha
Vihar, Jaripatka, Nagpur. ... RESPONDENT
Shri Ahfaz Qureshi, Advocate for the petitioner.
Shri N.H. Shams, Advocate for the respondent.
.....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT : AUG. 02, 2010.
DATE OF PRONOUNCING THE JUDGMENT : AUG. 12, 2010.
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JUDGMENT :
By this writ petition filed under Article 227 of
Constitution of India, the petitioner – husband has challenged
the order dated 01.10.2009 passed by Family Court No. 4,
Nagpur in Petition No. A-889/2008 below Exh. 16, directing him
to pay interim maintenance of Rs.2,500/- per month to the
respondent – wife from 15.07.2009. The matter was initially
presented as Criminal Revision Application under Section 397
read with Section 482 of Criminal Procedure Code and on
04.03.2010, it has been converted into a Writ Petition under
Article 227 of Constitution of India.
2. Looking to the nature of the controversy, Shri
Qureshi, learned counsel for the petitioner – husband and Shri
Shams, learned counsel for the respondent – wife, requested that
the matter should be taken up for final hearing. Accordingly, the
parties have been heard by making rule returnable forthwith.
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3. The marriage between the parties was solemnized at
Nagpur as per Islamic Law on 22.12.2006. The respondent –
wife has filed Petition No. A-889/2008 before Family Court No.4,
Nagpur under Section 281 of Mohammedan Law for restitution
of conjugal rights. The petitioner in his reply raised preliminary
objection and contended that he has pronounced Talaq on
09.04.2009 in front of two witnesses and hence the parties are
no longer husband and wife. The petition for restitution of
conjugal rights was, therefore, not maintainable. In those
proceedings, wife filed application for grant of interim
maintenance and husband filed his reply to the same, raising
same objection as preliminary objection. The Judge, Family
Court No. 4, Nagpur, after hearing parties, has found that the
husband was required to prove factum of divorce and mere
assertion in written statement and reply cannot defeat wife’s
claim for interim maintenance. Accordingly interim maintenance
of Rs.2,500/- per month is granted to Respondent wife on
01.10.2009 w.e.f. 15.07.2009.
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4. Shri Qureshi, learned counsel for the petitioner –
husband has contended that in a suit for restitution of conjugal
rights as filed, wife is not entitled to claim interim maintenance.
He has relied upon the judgment of this Court in the case of
Shabbir vs. Shakilabanu, reported at 1986 Mh. L.J. 759, to
substantiate his contention. He further states that situation
could have been otherwise had the suit filed been for
maintenance or then had wife filed proceedings under Section
125 of Criminal Procedure Code. He has also relied upon the
judgment in the case of Abdul Rahman vs. Tajunnissa Begum,
reported at AIR 1953 Madras 420, to urge that Civil Court
cannot in exercise of inherent jurisdiction grant such relief. His
contention is, such a relief is possible in present circumstances
only after final adjudication of the controversy. He has invited
attention to Section 281 as contained in principles of
Mohammedan Law by Mulla and also to B.R. Verma’s
Commentaries on Mohammedan Law, particularly its Section 30.
His contention is, such suit for restitution of conjugal rights
needs to be decided according to principles of Mohammedan law
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and not on the basis of principles of justice, equity and good
conscious but under statutory obligations.
5. Shri Shams, learned counsel for the respondent –
wife has contended that the above referred judgment of learned
Single Judge of this Court cannot be said to be laying down
correct law in view of the subsequent judgments holding the
field. He has invited attention to judgment of the Hon’ble Apex
Court in the case of Savitri w/o Govind Singh Rawat vs. Govind
Singh Rawat, reported at AIR 1986 SC 984, to urge that every
Court is deemed to possess necessary powers and hence a power
to award interim maintenance is available to Court. For the
same purpose, the Division Bench judgment in the case of Rajesh
Nanaji Morghade vs. Darshana Rajesh Morghade, reported at
1999 Mh. L.J. 327, is also relied upon to urge that power to
grant such interim maintenance has been found to be a
incidental power to grant main relief. Sangeeta Piyush Raj vs.
Piyush Chaturbhuj Raj, reported at 1998 Mh. L.J. 301, another
Division Bench ruling is also relied upon by the learned counsel
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to show how principle of necessary intendment is applied in such
matters. According to the learned counsel, the finding that suit
for restitution of conjugal rights as filed by the wife is
maintainable, has not been assailed or argued to be erroneous
and hence use of discretion by the trial Court in the matter
cannot be said to be either erroneous or perverse.
6.
Family Court No.4 at Nagpur has considered the
ruling on which Shri Qureshi, learned counsel, has placed
reliance. It has also considered Full Bench Judgment in the case
of Dadgu vs. Rahimbi, reported at II (2002) DMC 315 and then
recorded a finding that mere assertion of pronouncing of Talaq is
not sufficient. This finding has not been even whispered to be
bad before me. Thus, it is apparent that petition for restitution
of conjugal rights as filed by the respondent – wife is prima facie
maintainable and in that background Family Court has
proceeded to examine her entitlement.
7. The judgment in Shabbir vs. Shakilabanu, (supra)
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notes that the suit was filed by the husband for restitution of
conjugal rights and in it application for interim maintenance was
moved by wife. Article 278 of Mulla has then been looked into
to note that there is no vested or substantive right of
maintenance and wife can get the same only on determination of
stands like neglect or refusal of husband to maintain her without
lawful cause. It is noticed that even in that case, she is not
entitled for any decree for her past maintenance, unless the
claim is based on specific agreement. In para 14, it has been
noticed that recourse to Section 151 of Civil Procedure Code by
the wife was misplaced as that section does not confer a
substantive jurisdiction upon Court. In para 15, the question as
noticed is whether in aid of lis before the Civil Court, it was
necessary for the Civil Court in the interest of justice to exercise
power of granting interim maintenance under Section 151 of
CPC. As the nature of suit for restitution of conjugal rights is
found different from the suit for maintenance which a
Mohammedan is entitled to file under Mohammedan Law, and
because of availability of remedy to her under Section 125 of
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Criminal Procedure Code, it has been concluded by the Learned
Single Judge there that Civil Court had no jurisdiction to grant
any interim relief by way of interim maintenance.
8. The judgment is delivered in proceedings which were
initiated for restitution of conjugal rights by the husband and
thus husband there was trying to procure an order of co-
habitation against his wife. In this background, Article 278 of
Mohammedan Law (Mulla) has been looked into. In present
matter as already noticed above, the wife is trying to procure
such order of co-habitation against her husband thereby alleging
neglect or refusal by him. The judgment, therefore, by itself is
not decisive of controversy before me.
9. In Savitri w/o Govind Singh Rawat vs. Govind Singh
Rawat, (supra), the application was filed by a wife under Section
125 of Criminal Procedure Code, for maintenance against her
husband and she also sought an interim order. In this
background, the Hon’ble Apex Court has found that every Court
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has got power to possess all such powers by necessary
intendment as are necessary to make its orders effective. The
principal is embodied in maxim “ubi aliquid conceditur,
conceditur et id sine quo res ipsa esse non protest”. Whenever
anything is required to be done by law and it is found impossible
to do that thing unless something not authorized in express
terms is also done, then that something else can be procured and
this power is supplied by necessary intendment. The Hon’ble
Apex Court has also stated that such a construction may not be
always admissible, however, where it advances the object of the
Legislation and a contrary view is likely to result in great
hardship to the wife, who has no means to subsist, such an
implied power needs to be presumed. This judgment is followed
in Rajesh Nanaji Morghade vs. Darshana Rajesh Morghade,
(supra), where the learned Single Judge has found that in the
matter of maintenance, Court which has got power to grant main
relief, has also power to grant interim relief. Division Bench of
this Court in Sangeeta Piyush Raj vs. Piyush Chaturbhuj Raj,
(supra), has expressly mentioned this Supreme Court judgment
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in Savitri w/o Govind Singh Rawat vs. Govind Singh Rawat,
(supra),and held that application for interim maintenance can be
made to any Court and Court can exercise its inherent power to
award it. It is to be noted that all these judgments are between
parties who are governed by Hindu Customs and Law.
10. Abdul Rahman vs. Tajunnissa Begum, (supra) is the
judgment of Division Bench of the Hon’ble Madras High Court
and both parties to it are Mohammedan. The Division Bench has
found that there is no power in Court to grant interim relief
which properly can be granted only by a decree after
adjudication of points in controversy. There, in a suit for
maintenance filed by wife, her entitlement was hotly contested
and hence an order for payment of interim maintenance was
held without jurisdiction. The learned Single Judge had ordered
interim maintenance to be paid and that order was set aside by
the Division Bench. The various precedence considered there
show that the basic issue was whether inherent powers of the
Court could be exercised for issuing such direction. Hon. Division
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Bench answered it in negative. This adjudication is not
influenced by personal law of the parties.
11. This judgment of Madras High Court is considered by
Full Bench of Orissa High Court in its judgment in the case of
Khandal Penthi vs. Hulash Dei, reported at AIR 1989 Orissa 137.
The suit there was filed by wife for maintenance and she also
sought interim maintenance. The matrimonial relationship was
denied by husband and the Hon’ble Full Bench found that it
cannot be the ground to refuse interim maintenance. The
judgment of Madras High Court in Abdul Rahman vs. Tajunnissa
Begum (supra) is noted there in para 4 but then it has been
found that grant of interim maintenance under Section 151 of
Civil Procedure Code, is possible. Ii is important to note that in
para 6, the Full Bench also noticed that suit before it was not
under provisions of the Hindu Marriage Act, 1955, but a suit of
Civil nature and hence under Section 9 of Civil Procedure Code.
The prayer for interim maintenance therein was not one under
Section 24 of the Hindu Marriage Act which provides for
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pendente lite maintenance. Hon. Full Bench also states that no
suit is contemplated under Section 18 of the Hindu Adoptions
and Maintenance Act. The right of a Hindu woman to
maintenance declared and recognized by Section 18 of that Act
was found to be an enforceable right which can be enforced in a
Civil Suit. Suit in the instant matter is also under Section 9 of
Civil Procedure Code read with Section 281 of Mohammedan
Law and there is no argument of absence of enforceable right.
On the contrary, before the Family Court fact of severance of
relationship was pleaded as an excuse to discharge of obligation
to maintain.
12. P. Srinivasa Rao vs. P. Indira, reported at AIR 2002 A.P.
130, is another Full Bench judgment which has considered above
mentioned judgment of Madras High Court. It has been held
that interim maintenance can be granted by Family Court under
Section 151 of Civil Procedure Code, to wife and children in a
suit for maintenance under Hindu Adoptions and Maintenance
Act, 1956, filed against the husband. It is noticed by the Hon’ble
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Full Bench that said view of Madras High Court was
distinguished by Calcutta High Court in Gouri Gupta vs. Tarani
Gupta, reported at AIR 1968 Cal. 305, and this view was
affirmed by Division Bench of Calcutta High Court in the case of
Tarini Gupta vs. Gouri Gupta, reported at AIR 1969 Cal. 567. The
above mentioned Full Bench judgment of Orissa High Court is
also quoted with approval in para 36, 37 and 38. At the end of
para 38, it has been stated that inherent power of a Court, as is
well known, can be denied only by way of statutory interdiction.
There does not exist any provision either in Civil Procedure
Code, or in the Act, disbelieving the Court from granting interim
maintenance”. In para 45, it is also held that independent of
inherent powers under Section 151 of Civil Procedure Code,
even under the provisions of Act itself, by necessary implication,
power has been conferred in the Court to grant interim
maintenance to wife and minor children where circumstances so
warrant.
13. Thus, the Full Bench judgments above clearly show
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that in a suit cognizable under Section 9 of Civil Procedure Code,
the power to grant interim maintenance is available to Civil
Court. The same power is also available to Family Court. Here,
though the parties are Mohammedan, the maintainability of
proceedings is not in dispute and hence till the question of
entitlement to final relief remains pending for adjudication, Case
before the Family Court is not for recovery of maintenance and,
it has jurisdiction and power to award interim maintenance to
the respondent – wife during restitution proceedings. The
Family Court has correctly appreciated the law on the point.
14. I, therefore, do not find any case made out
warranting interference in writ jurisdiction. Writ Petition is,
therefore, dismissed. Rule discharged. However, in the facts and
circumstances of the case, there shall be no order as to costs.
JUDGE
*******
*GS.
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