{"id":230401,"date":"2010-08-12T00:00:00","date_gmt":"2010-08-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammed-anis-ul-haq-vs-and-on-12-august-2010"},"modified":"2015-08-21T20:28:17","modified_gmt":"2015-08-21T14:58:17","slug":"mohammed-anis-ul-haq-vs-and-on-12-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammed-anis-ul-haq-vs-and-on-12-august-2010","title":{"rendered":"Mohammed Anis-Ul-Haq vs And on 12 August, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mohammed Anis-Ul-Haq vs And on 12 August, 2010<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                     1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                    \n               WRIT PETITION NO.   3232  OF  2010\n\n\n\n\n                                            \n     Mohammed Anis-Ul-Haq s\/o \n     Manzul-Ul-Haq, \n\n\n\n\n                                           \n     aged about 33 years,\n     occupation - Medical Practitioner,\n     r\/o c\/o Sarawar Abad, Yashodhara\n     Nagar, Near Dr. Rehman,\n\n\n\n\n                                 \n     Kamptee Road, Nagpur.                    ...   PETITIONER\n                    \n                Versus\n\n     Asma Anjum w\/o Anis-Ul-Haq,\n                   \n     aged about 28 years,\n     occupation - Housewife,\n     r\/o Plot No. 27, Shakilbhai\n     Apartment, Teachers' Colony,\n      \n\n\n     Jafar Nagar, Nagpur.\n   \n\n\n\n     AND\n     At Lumbani Nagar, Near Buddha\n     Vihar, Jaripatka, Nagpur.                 ...   RESPONDENT\n\n\n\n\n\n     Shri Ahfaz Qureshi, Advocate for the petitioner.\n     Shri N.H. Shams, Advocate for the respondent.\n                           .....\n\n\n\n\n\n                       CORAM :  B.P. DHARMADHIKARI, J.\n     DATE OF RESERVING THE JUDGMENT        : AUG. 02, 2010.\n     DATE OF PRONOUNCING THE JUDGMENT  : AUG. 12, 2010.\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 16:17:11 :::\n                                            2\n     JUDGMENT :  \n<\/pre>\n
                  By   this   writ   petition   filed   under   Article   227   of <\/p>\n
     Constitution  of   India,   the  petitioner  –  husband has  challenged <\/p>\n
     the   order   dated   01.10.2009   passed   by   Family   Court   No.   4, <\/p>\n
     Nagpur in Petition No. A-889\/2008 below Exh. 16, directing him <\/p>\n
     to   pay   interim   maintenance   of   Rs.2,500\/-   per   month   to   the <\/p>\n
     respondent   –   wife   from   15.07.2009.     The   matter   was   initially <\/p>\n
     presented   as   Criminal   Revision   Application   under   Section   397 <\/p>\n
     read   with   Section   482   of   Criminal   Procedure   Code   and   on <\/p>\n
     04.03.2010,   it   has   been   converted   into   a   Writ   Petition   under <\/p>\n
     Article 227 of Constitution of India.\n<\/p>\n
     2.           Looking   to   the   nature   of   the   controversy,   Shri <\/p>\n
     Qureshi, learned counsel for the petitioner – husband and Shri <\/p>\n
     Shams, learned counsel for the respondent – wife, requested that <\/p>\n
     the matter should be taken up for final hearing.  Accordingly, the <\/p>\n
     parties have been heard by making rule returnable forthwith.\n<\/p>\n
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\n                                              3<\/span><\/p>\n
     3.             The marriage between the parties was solemnized at <\/p>\n
     Nagpur as  per Islamic  Law  on  22.12.2006.   The  respondent  –\n<\/p>\n
     wife has filed Petition No. A-889\/2008 before Family Court No.4, <\/p>\n
     Nagpur under Section 281 of Mohammedan Law for restitution <\/p>\n
     of conjugal rights.  The petitioner in his reply raised preliminary <\/p>\n
     objection   and   contended   that   he   has   pronounced   Talaq   on <\/p>\n
     09.04.2009 in front of two witnesses and hence the parties are <\/p>\n
     no   longer   husband   and   wife.       The   petition   for   restitution   of <\/p>\n
     conjugal   rights   was,   therefore,   not   maintainable.     In   those <\/p>\n
     proceedings,   wife   filed   application   for   grant   of   interim <\/p>\n
     maintenance   and   husband   filed   his   reply   to   the   same,   raising <\/p>\n
     same   objection   as   preliminary   objection.     The   Judge,   Family <\/p>\n
     Court No. 4, Nagpur, after hearing parties, has found that the <\/p>\n
     husband   was   required   to   prove   factum   of   divorce   and   mere <\/p>\n
     assertion   in   written   statement   and   reply   cannot   defeat   wife’s <\/p>\n
     claim for interim maintenance. Accordingly interim maintenance <\/p>\n
     of   Rs.2,500\/-   per   month   is   granted   to   Respondent   wife   on <\/p>\n
     01.10.2009 w.e.f. 15.07.2009.\n<\/p>\n
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\n                                               4<\/span><\/p>\n
     4.            Shri   Qureshi,   learned   counsel   for   the   petitioner   –\n<\/p>\n
     husband has contended that in a suit for restitution of conjugal <\/p>\n
     rights as filed, wife is not entitled to claim interim maintenance.\n<\/p>\n
     He   has   relied   upon   the   judgment   of  this   Court   in   the   case   of <\/p>\n
     Shabbir   vs.   Shakilabanu,   reported   at   1986   Mh.   L.J.   759,   to <\/p>\n
     substantiate   his   contention.     He   further   states   that   situation <\/p>\n
     could   have   been   otherwise   had   the   suit   filed   been   for <\/p>\n
     maintenance or then had wife filed proceedings under Section <\/p>\n
     125 of Criminal Procedure Code.   He has also relied upon the <\/p>\n
     judgment   in   the   case   of  Abdul   Rahman   vs.   Tajunnissa   Begum, <\/p>\n
     reported   at   AIR   1953   Madras   420,   to   urge   that   Civil   Court <\/p>\n
     cannot in exercise of inherent jurisdiction grant such relief.  His <\/p>\n
     contention is, such a relief is possible in present circumstances <\/p>\n
     only after final adjudication of the controversy.   He has invited <\/p>\n
     attention   to   Section   281   as   contained   in   principles   of <\/p>\n
     Mohammedan   Law   by   Mulla   and   also   to   B.R.   Verma’s <\/p>\n
     Commentaries on Mohammedan Law, particularly its Section 30.\n<\/p>\n
     His   contention   is,   such   suit   for   restitution   of   conjugal   rights <\/p>\n
     needs to be decided according to principles of Mohammedan law <\/p>\n
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\n                                               5<\/span>
\n     and   not   on   the   basis   of   principles   of   justice,   equity   and  good <\/p>\n
     conscious but under statutory obligations.\n<\/p>\n
     5.            Shri   Shams,   learned   counsel   for   the   respondent   –\n<\/p>\n
     wife has contended that the above referred judgment of learned <\/p>\n
     Single   Judge   of   this   Court   cannot   be   said   to   be   laying   down <\/p>\n
     correct   law   in   view   of   the   subsequent   judgments   holding   the <\/p>\n
     field.  He has invited attention to judgment of the Hon’ble Apex <\/p>\n
     Court in the case of  Savitri w\/o Govind Singh Rawat vs. Govind  <\/p>\n
     Singh Rawat,<\/a> reported at AIR 1986 SC 984, to urge that every <\/p>\n
     Court is deemed to possess necessary powers and hence a power <\/p>\n
     to   award   interim   maintenance   is   available   to   Court.     For   the <\/p>\n
     same purpose, the Division Bench judgment in the case of Rajesh <\/p>\n
     Nanaji   Morghade   vs.   Darshana   Rajesh   Morghade,<\/a>   reported   at <\/p>\n
     1999   Mh.   L.J.   327,   is   also   relied   upon   to   urge   that   power   to <\/p>\n
     grant   such   interim   maintenance   has   been   found   to   be   a <\/p>\n
     incidental power to grant main relief.     Sangeeta Piyush Raj vs.  <\/p>\n
     Piyush Chaturbhuj Raj,<\/a> reported at 1998 Mh. L.J. 301, another <\/p>\n
     Division Bench ruling is also relied upon by the learned counsel <\/p>\n
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\n                                              6<\/span>
\n     to show how principle of necessary intendment is applied in such <\/p>\n
     matters.  According to the learned counsel, the finding that suit <\/p>\n
     for   restitution   of   conjugal   rights   as   filed   by   the   wife   is <\/p>\n
     maintainable, has not been assailed or argued to be   erroneous <\/p>\n
     and   hence   use   of   discretion   by   the   trial   Court   in   the   matter <\/p>\n
     cannot be said to be either erroneous or perverse.\n<\/p>\n
     6.<\/p>\n
                   Family   Court   No.4   at   Nagpur   has   considered   the <\/p>\n
     ruling   on   which   Shri   Qureshi,   learned   counsel,   has   placed <\/p>\n
     reliance.  It has also considered Full Bench Judgment in the case <\/p>\n
     of  Dadgu vs. Rahimbi, reported at II (2002) DMC 315 and then <\/p>\n
     recorded a finding that mere assertion of pronouncing of Talaq is <\/p>\n
     not sufficient.   This finding has not been even whispered to be <\/p>\n
     bad before me.   Thus, it is apparent that petition for restitution <\/p>\n
     of conjugal rights as filed by the respondent – wife is prima facie <\/p>\n
     maintainable   and   in   that   background   Family   Court   has <\/p>\n
     proceeded to examine her entitlement.\n<\/p>\n
     7.            The   judgment   in    Shabbir   vs.   Shakilabanu,  (supra) <\/p>\n
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\n                                                 7<\/span>
\n     notes  that  the suit  was filed  by  the husband  for  restitution  of <\/p>\n
     conjugal rights and in it application for interim maintenance was <\/p>\n
     moved by wife.  Article 278 of Mulla has then been looked into <\/p>\n
     to   note   that   there   is   no   vested   or   substantive   right   of <\/p>\n
     maintenance and wife can get the same only on determination of <\/p>\n
     stands like neglect or refusal of husband to maintain her without <\/p>\n
     lawful   cause.     It   is   noticed   that   even   in   that   case,   she   is   not <\/p>\n
     entitled   for   any   decree   for   her   past   maintenance,   unless   the <\/p>\n
     claim is based on specific agreement.   In para 14, it has been <\/p>\n
     noticed that recourse to Section 151 of Civil Procedure Code by <\/p>\n
     the   wife   was   misplaced   as   that   section   does   not   confer   a <\/p>\n
     substantive jurisdiction upon Court.  In para 15, the question as <\/p>\n
     noticed is   whether in aid of lis before the Civil Court, it was <\/p>\n
     necessary for the Civil Court in the interest of justice to exercise <\/p>\n
     power   of   granting   interim   maintenance   under   Section   151   of <\/p>\n
     CPC.   As the nature of suit for restitution of conjugal rights is <\/p>\n
     found   different   from   the   suit   for   maintenance   which   a <\/p>\n
     Mohammedan is entitled to file under Mohammedan Law, and <\/p>\n
     because  of  availability of remedy  to her under  Section  125  of <\/p>\n
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\n                                             8<\/span>
\n     Criminal Procedure Code, it has been concluded by the Learned <\/p>\n
     Single Judge there that Civil Court had no jurisdiction to grant <\/p>\n
     any interim relief by way of interim maintenance.\n<\/p>\n
     8.           The judgment is delivered in proceedings which were <\/p>\n
     initiated   for   restitution   of   conjugal   rights  by   the   husband  and <\/p>\n
     thus   husband   there   was   trying   to   procure   an   order   of   co-\n<\/p>\n
     habitation against his wife.   In this background, Article 278 of <\/p>\n
     Mohammedan   Law   (Mulla)   has   been   looked   into.     In   present <\/p>\n
     matter  as  already  noticed above,  the  wife   is trying  to procure <\/p>\n
     such order of co-habitation against her husband thereby alleging <\/p>\n
     neglect or refusal by him.   The judgment, therefore, by itself is <\/p>\n
     not decisive of controversy before me.\n<\/p>\n
     9.           In Savitri w\/o Govind Singh Rawat vs. Govind Singh  <\/p>\n
     Rawat,<\/a> (supra), the application was filed by a wife under Section <\/p>\n
     125   of   Criminal   Procedure   Code,   for   maintenance   against   her <\/p>\n
     husband   and   she   also   sought   an   interim   order.     In   this <\/p>\n
     background, the Hon’ble Apex Court has found that every Court <\/p>\n
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\n                                               9<\/span>
\n     has   got   power   to   possess   all   such   powers   by   necessary <\/p>\n
     intendment as are necessary to make its orders effective.   The <\/p>\n
     principal   is   embodied   in   maxim   “ubi   aliquid   conceditur,  <\/p>\n
     conceditur   et   id   sine   quo   res   ipsa   esse   non   protest”.     Whenever <\/p>\n
     anything is required to be done by law and it is found impossible <\/p>\n
     to   do   that   thing   unless   something   not   authorized   in   express <\/p>\n
     terms is also done, then that something else can be procured and <\/p>\n
     this   power   is   supplied   by   necessary   intendment.     The   Hon’ble <\/p>\n
     Apex Court has also stated that such a construction may not be <\/p>\n
     always admissible, however, where it advances the object of the <\/p>\n
     Legislation   and   a   contrary   view   is   likely   to   result   in   great <\/p>\n
     hardship   to   the   wife,   who   has   no   means   to   subsist,   such   an <\/p>\n
     implied power needs to be presumed.  This judgment is followed <\/p>\n
     in  Rajesh   Nanaji   Morghade   vs.   Darshana   Rajesh   Morghade,<\/a> <\/p>\n
     (supra), where the learned Single Judge has found that in the <\/p>\n
     matter of maintenance, Court which has got power to grant main <\/p>\n
     relief, has also power to grant interim relief.   Division Bench of <\/p>\n
     this   Court   in  Sangeeta  Piyush   Raj   vs.   Piyush   Chaturbhuj   Raj,<\/a> <\/p>\n
     (supra), has expressly mentioned this Supreme Court judgment <\/p>\n
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\n                                              10<\/span>
\n     in   Savitri   w\/o   Govind   Singh   Rawat   vs.   Govind   Singh   Rawat,<\/a> <\/p>\n
     (supra),and held that application for interim maintenance can be <\/p>\n
     made to any Court and Court can exercise its inherent power to <\/p>\n
     award it.  It is to be noted that all these judgments are between <\/p>\n
     parties who are governed by Hindu Customs and Law.\n<\/p>\n
     10.           Abdul   Rahman   vs.   Tajunnissa   Begum,   (supra)   is   the <\/p>\n
     judgment of Division Bench of the Hon’ble Madras High Court <\/p>\n
     and both parties to it are Mohammedan.  The Division Bench has <\/p>\n
     found   that   there   is   no   power   in   Court   to   grant   interim   relief <\/p>\n
     which   properly   can   be   granted   only   by   a   decree   after <\/p>\n
     adjudication   of   points   in   controversy.     There,   in   a   suit   for <\/p>\n
     maintenance filed by wife, her entitlement was hotly contested <\/p>\n
     and   hence   an   order   for   payment   of   interim   maintenance   was <\/p>\n
     held without jurisdiction.  The learned Single Judge had ordered <\/p>\n
     interim maintenance to be paid and that order was set aside by <\/p>\n
     the   Division   Bench.     The   various   precedence   considered   there <\/p>\n
     show that the basic issue was whether inherent powers of the <\/p>\n
     Court could be exercised for issuing such direction. Hon. Division <\/p>\n
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\n                                             11<\/span>
\n     Bench   answered   it   in   negative.   This   adjudication   is   not <\/p>\n
     influenced by personal law of the parties.\n<\/p>\n
     11.           This judgment of Madras High Court is considered by <\/p>\n
     Full Bench of Orissa High Court in its judgment in the case of <\/p>\n
     Khandal Penthi vs. Hulash Dei, reported at AIR 1989 Orissa 137.\n<\/p>\n
     The suit there was filed by wife for maintenance and she also <\/p>\n
     sought interim maintenance.   The matrimonial relationship was <\/p>\n
     denied   by   husband   and   the   Hon’ble   Full   Bench   found   that   it <\/p>\n
     cannot   be   the   ground   to   refuse   interim   maintenance.     The <\/p>\n
     judgment of Madras High Court  in Abdul Rahman vs. Tajunnissa  <\/p>\n
     Begum  (supra)   is   noted   there   in   para   4   but   then   it   has   been <\/p>\n
     found that grant of interim maintenance under Section 151 of <\/p>\n
     Civil Procedure Code, is possible.  Ii is important to note that in <\/p>\n
     para 6, the Full Bench also noticed that suit before it was not <\/p>\n
     under provisions of the Hindu Marriage Act, 1955, but a suit of <\/p>\n
     Civil nature and hence under Section 9 of Civil Procedure Code.\n<\/p>\n
     The prayer for interim maintenance therein was not one under <\/p>\n
     Section   24   of   the   Hindu   Marriage   Act   which   provides   for <\/p>\n
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\n                                             12<\/span>
\n     pendente lite maintenance.  Hon. Full Bench also states that no <\/p>\n
     suit is contemplated under Section 18 of the Hindu Adoptions <\/p>\n
     and   Maintenance   Act.     The   right   of   a   Hindu   woman   to <\/p>\n
     maintenance declared and recognized by Section 18 of that Act <\/p>\n
     was found to be an enforceable right which can be enforced in a <\/p>\n
     Civil Suit. Suit in the instant matter is also under Section 9 of <\/p>\n
     Civil   Procedure   Code   read   with   Section   281   of   Mohammedan <\/p>\n
     Law and there is no argument of absence of enforceable right.\n<\/p>\n
     On   the   contrary,   before   the   Family   Court   fact   of   severance   of <\/p>\n
     relationship was pleaded as an excuse to  discharge of obligation <\/p>\n
     to maintain.\n<\/p>\n
     12.           P. Srinivasa Rao vs. P. Indira, reported at AIR 2002 A.P.\n<\/p>\n
     130, is another Full Bench judgment which has considered above <\/p>\n
     mentioned judgment  of Madras  High  Court.     It  has  been  held <\/p>\n
     that interim maintenance can be granted by Family Court under <\/p>\n
     Section 151 of Civil Procedure Code, to wife and children in a <\/p>\n
     suit for maintenance under Hindu Adoptions and Maintenance <\/p>\n
     Act, 1956, filed against the husband.  It is noticed by the Hon’ble <\/p>\n
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\n                                           13<\/span>
\n     Full   Bench   that   said   view   of   Madras   High   Court   was <\/p>\n
     distinguished by Calcutta High Court in  Gouri Gupta vs. Tarani  <\/p>\n
     Gupta,   reported   at   AIR   1968   Cal.   305,   and   this   view   was <\/p>\n
     affirmed by Division Bench of Calcutta High Court in the case of <\/p>\n
     Tarini Gupta vs. Gouri Gupta, reported at AIR 1969 Cal. 567. The <\/p>\n
     above mentioned Full Bench judgment of Orissa High Court is <\/p>\n
     also quoted with approval in para 36, 37 and 38.  At the end of <\/p>\n
     para 38, it has been stated that inherent power of a Court, as is <\/p>\n
     well known, can be denied only by way of statutory interdiction.\n<\/p>\n
     There   does   not   exist   any   provision   either   in   Civil   Procedure <\/p>\n
     Code, or in the Act, disbelieving the Court from granting interim <\/p>\n
     maintenance”.   In para 45, it is also held that independent of <\/p>\n
     inherent   powers   under   Section   151   of   Civil   Procedure   Code, <\/p>\n
     even under the provisions of Act itself, by necessary implication, <\/p>\n
     power   has   been   conferred   in   the   Court   to   grant   interim <\/p>\n
     maintenance to wife and minor children where circumstances so <\/p>\n
     warrant.\n<\/p>\n
     13.          Thus, the Full Bench judgments above clearly show <\/p>\n
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\n                                            14<\/span>
\n     that in a suit cognizable under Section 9 of Civil Procedure Code, <\/p>\n
     the   power   to   grant   interim   maintenance   is   available   to   Civil <\/p>\n
     Court.  The same power is also available to Family Court.  Here, <\/p>\n
     though   the   parties   are   Mohammedan,   the   maintainability   of <\/p>\n
     proceedings   is   not   in   dispute   and   hence   till   the   question   of <\/p>\n
     entitlement to final relief remains pending for adjudication, Case <\/p>\n
     before the Family Court is not for recovery of maintenance and, <\/p>\n
     it   has jurisdiction and power to award interim maintenance to <\/p>\n
     the   respondent   –   wife   during   restitution   proceedings.     The <\/p>\n
     Family Court has correctly appreciated the law on the point.\n<\/p>\n
     14.          I,   therefore,   do   not   find   any   case   made   out <\/p>\n
     warranting   interference   in   writ   jurisdiction.     Writ   Petition   is, <\/p>\n
     therefore, dismissed.  Rule discharged.  However, in the facts and <\/p>\n
     circumstances of the case, there shall be no order as to costs.\n<\/p>\n
                                                    JUDGE
\n                                     *******
\n     *GS.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:17:11 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mohammed Anis-Ul-Haq vs And on 12 August, 2010 Bench: B. P. Dharmadhikari 1 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-230401","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMohammed Anis-Ul-Haq vs And on 12 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammed-anis-ul-haq-vs-and-on-12-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammed Anis-Ul-Haq vs And on 12 August, 2010 - 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