ATUL SASHIKANT MUDE Vs. NIRANJANA ATUL MUDE

JUDGEMENT

(1.) THIS appeal, which was admitted by the 1st Court on 29th July 1997, was taken up for hearing as it was stated on behalf of the appellant that the order is such that it is impossible for him to comply with and will result into grave hardship to the appellant-husband.

(2.) THE order impugned is an ad-interim order passed by the learned Single Judge in a Notice of Motion taken out in a suit filed by the wife under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the "act") for maintenance for herself and her minor daughter. The learned Judge by the impugned order dated 17th July 1997 awarded an ad-interim maintenance of Rs. 7,500/- per month commencing from July 1997. The amount, the learned Judge clarified would include Rs. 1,600/- which the defendant-husband is prepared to pay for the maintenance of the child.

(3.) MR. Naphade, learned Counsel appearing for the appellant-husband, read out the impugned order and raised three points. He, firstly, contended that the Court has no jurisdiction to pass an ad-interim order of the nature in a suit filed for maintenance under section 18 of the Act. Mr. Naphade contended that the provisions of section 151 of the Code of Civil Procedure cannot be pressed into service as, in his submission, those provisions do not confer any additional jurisdiction upon the Court and if there is any specific provision in the statute for the matter involved, then recourse cannot be had to the provisions of section 151. Mr. Naphade took us through the provisions of the Code of Civil Procedure and pointed out that section 75, etc. relate to incidental proceedings whereas the provisions of sections 94 and 95 of the Code of Civil Procedure are supplemental. In Mr. Naphades submission, all these procedural provisions ultimately must come in aid of the suit and while passing any such orders, whether incidental or supplemental, the Court must always have advertence to the provisions of section 144 which provide for restitution. Mr. Naphade submitted that if, ultimately, the plaintiff fails in a suit for maintenance, then how will the defendant recover the amount which has been paid for a number of years and, therefore, this factor must be borne in mind by the Court while passing ad-interim or interim orders. Mr. Naphade, thereafter, took us through the provisions of sections 3 (b) and 18 of the Act. In section 3 (b), maintenance has been defined as under:-