K SHANKARA GOWDA Vs. S BHARATHI

JUDGEMENT

(1.) The respondent is the wife of the petitioner. She brought a suit against her husband in OS.388 of 1973 on the file of the Court of the Munsiff. Chintamani for maintenance. In that suit, the defendant-husband raised various contentions. He did not dispute that the plaintiff is his wife. In the suit, the plaintiff filed IA.III for making an order granting interim maintenance. The learned Munsiff, after hearing the parties, made an order to the effect that the petitioner shall pay interim maintenance to the plaintiff at the rate of Rs.75 per month from the date of the suit. It is against the said order that this revision petition is directed.

(2.) It Was urged by Sri M.S.Gopal, learned Counsel for the petitioner that in a suit for recovery of maintenance the Court has no jurisdiction to order interim maintenance. In support of that contention he relied on the decisions in Abdul Rahman v. Tajunnisa Begum AIR. 1953 Mad. 420 and Appanna v. Seethamma AIR. 1972 AP. 62. . Both the decisions are Divn Bench decisions. In the Madras case(l) Venkatarama Aiyar, J.. while delivering the judgment on behalf of the Bench, stated that the CPC confers certain powers on the Court to grant relief in interim proceedings, such as, for example, power to issue injunctions, attachment before judgments or appointment of rpceivers but apart from such powers, there is no inherent jurisdiction in Courts to grant interim relief which properly ought to be granted only by the decree after determination of the points in controversy therefore, in a suit for maintenance by the wife where the claim is holly contested, an order for payment of interim maintonanco is without jurisdiction. To the same effect is the decision of the Andhra Pradesh High Court (2).

(3.) For the respondent, Miss Pramila, learned Counsel for the wife, sought support from the judgment of the High Court of Calcutta, in Tarini Gupta v. Couri Gupta AIR. 1988 Cal. 567 where A N.Ray, J., as he then was, dissented from the view taken by the High Court of Madras and held that the right of a wife to claim maintenance flows from S.18 of the Hindu Adoptions and Maintenance Act, and that it is not a right under any section of the CPC. The learned Judge, in para 15 of the judgment said Ubi jus ubi remedium; where there is a right there must be a remedy; the right flows from S.18 of the Hindu Adoptions and Maintenance Act if there is a general right under the statute to claim maintenance, it follows that also during the pendency of the suit the wife has a right to claim maintenance; the right of maintenance is there because she is the wife; secondly, the right to claim maintenance is being asserted in the suit and thirdly, there is a right to claim maintenance till the suit is determined and followed by a decree.