MOHD ZAFARULLAH KHAN Vs. YASMEEN KHAN

JUDGEMENT

(1.) The 1st respondent is the wife of the petitioner and respondents 2 and 3 are their daughters born out of their wedlock. The 1st respondent is living separately since 1987 along with respondents 2 and 3 after declaration of divorce by the petitioner on 11-6-1986. The respondents filed a suit OS 91 of 1988 on the file of the V Additional Judge, City Civil Court, Hyderabad for maintenance and also for past arrears of maintenance of Rs. 1.08,000/-. Pending disposal of the suit, they filed IA No. 337 of 1989, out of which this revision arises, under Section 151 CPC claiming interim maintenance at Rs. 3,000/- per month to the 1st respondent and Rs. 1,500-/ each to her daughters. The husband resisted the application on the ground that the Court has no jurisdiction to award interim maintenance under Section 151 CPC. The learned Additional Judge rejected the contention of the husband and awarded Rs. 2,000/- per month for a period of 3 months ie, Iddat period as interim maintenance to the mother and Rs. 750/- per month each to the minor daughters from the date of the petition to maintain themselves during the pendency of the main suit considering the social status of the parties. Aggrieved against that order, the husband of the I st respondent filed this revision petition.

(2.) The husband is having one house in Jubilee Hills within the municipal limits of Hyderabad Municipal Corporation and one house at Kazipet and a dairy farm near Vikarabad. The marriage between the petitioner and respondent No 1 herein was celebrated in the year 1977 and it ended in divorce on 11-6-1986 The petitioner also gave two cheques for Rs. 2 lakhs in the name of respondents 2 and 3 ie, minor daughters but they were dishonoured. So a complaint under Section 420 1PC was filed and it was registered as No. 661 of 1987 on the file of 9th Metropolitan Magistrate, Hyderabad. The wife's case is that she is not in a position to maintain herself and her two minor daughters. The fact that she is entitled to the maintenance for a period of three months during the Iddath period under Muslim Law has to be determined only in a full dressed trial and Court cannot be permitted to decide the same in an interlocutory application under Section 151 CPC. If any amount is granted it amounts to an order which can properly be granted only by the ultimate determination in the suit finally. The 1st respondent after divorce is also running a Beauty clinic and she is getting some income and that amount also has to be ascertained.

(3.) With regard to the minors is concerned, they are now under the custody of their mother. The petitioner herein also filed OP No. 158 of 1987 for the custody of his daughters and the same is pending on the file of the Additional Chief Judge City Civil Court, Hyderabad. Pending disposal of the rival claims made by both the husband and wife, the Court has to take note of the fact of maintenance of those minor children. Even if the custody is given as on to-day to the husband, he is entitled to maintain the children and he himself wanted to have the custody of the two minor children. Now as they are in the custody of their mother and as the two cheques for Rs, 2 lakhs each given by the husband in their favour have been dishonoured, prima facie it has to be found that they require maintenance from their father Even if they file a petition under Section 125 Cr PC the daughters are entitled to claim maintenance When they filed a suit for maintenance and when there is no definite provision in the Civil Procedure Code to file an application just like the one now filed, can the parties file an application for the grant of interim maintenance. It is a settled principle of law that either in an application filed under the Guardian and Wards Act or a petition under the Hindu Marriage Act or a petition for maintenance under Section 125 Cr PC,, the minor children are entitled to claim interim maintenance pending disposal of those proceedings and the Court are competent to award interim maintenance by taking into account the status of the parties. It is only to prevent the vagrancy multiplicity of litigation interim maintenance is being provided. There is no provision in the Code of Civil Procedure for the grant of interim maintenance. But the Courts are resorting to grant interim maintenance. Even when there is no definite provision and when the minor children file a suit for maintenance, the Courts are at liberty to award interim maintenance but it should not be detrimental to the income of the other party and it should reflect the minimum possible so that it may not be a burden to the otherside.