GIAN DEVI Vs. AMAR NATH AGGARWAL

JUDGEMENT

(1.) The learned counsel for the applicant has referred to several reported cases, to show that interim maintenance can be ordered during the pendency of a suit for maintenance. Those authorities for the purposes of reference, are reported as A.I.R. 1955 Madras 571 Muniammal v. P.M. Ranganatha Nayagar and another A.I.R. 1968 Calcutta 305, Smt. Gouri Gupta Chandhury v. Tarani Gupta Chaudhury, A.I.R. 1968 Calcutta 405, Nemal Chand Jain v. Smt. Lila Jain and A.I.R. 1968 Calcutta 567(s), Tarini Gupta Chowdhury v. Smt. Gouri Gupta Chowdhury. The present application has been moved during the pendency of a pauper application and the learned counsel for the respondent urges that the authorities show that interim maintenance can be ordered in a suit but not during the pendency of a pauper application. The learned counsel for the respondent has offered to pay interim maintenance @Rs. 200.00 per month starting from the date of institution of the suit in this Court. This offer is without prejudice to the eventual maintenance ordered or fixed and also without prejudice to the maintenance which may be fixed in the petition, under Section 488 of the Criminal Procedure Code, which is pending. The respondent is, however, not willing to pay the arrears of maintenace immediately and wants three years time to make up this payment. The offer is not acceptable to the petitioner, who claims that the arrears of maintenance should be paid from 1971 is admitted and also that the arrears should not be withheld for a period of three years. On referring to the authorities cited by Mr. Sethi to submit that there can be no order for maintenance passed at this stage, I find that A.I.R. 1952 Mysore 76, Thimmayya v. M. B. Sadasivappa and another, is an authority concerning the grant of a temporary injunction during the pendency of a pauper application. It was held by the Court that a temporary injunction could only be granted in a 'suit'. Referring to Section 94 of the Civil Procedure Code it was held that an injunction could only be granted if the prescribed conditions were satisfied. The application not being a suit. it was held no interim injunction could be granted. The present application is not one for the grant of an interim injunction. It is an application for interlocutory order and, therefore. Section 94 applies. There are no restictions in the Code regarding the passing of such interlocutory orders. The same provision of Law apply to the pauper applications as apply to suits.

(2.) Turning now to the cases cited by the learned counsel for the applicant, I find that the judgment of the Calcutta High Court reported as Nemal Chand Jain v. Smt. Lila Jain, A.I.R. 1968 Calcutta 405 and the judgment reported as Tarini Gupta Chowdhury v. Smt. Gouri Gupta Chowdhury, A.I.R. 1968 Calcutta 567, were concerned with the circumstances in which an interim maintenance order could be passed during the pendency of a suit for maintenance. It was urged before the Court that an order concerning the grant of interim maintenance could be passed only under Section 151 of the Code. However, the Court held that this was not so. It was decided that once the proceedings under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, were before the Court, the Court had full jurisdiction to grant maintenance to the wife or other person who was beforethe Court. It was observed thus by the Court :-

(3.) I have been referred to the provisions of the Hindu Adoptions and Maintenance Act, 1966. The provisions of that Act as far as present question is concerned are quite plain. It is the duty of a Hindu, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. This is provided by Section 20 of the Act. The applicant is 76 years old and, therefore, obviously comes within the category of aged or infirm parents. The applicant also comes within the category of 'dependent' as defined in Section 21 of the Act. The maintenance of dependents is dealt with in Sections 22 and 23 of the Act. It is stated in Section 22 of the Act as follows:-