Madras High Court: In a civil revision petition concerning a question that whether a Muslim wife, who had presented a plaint in terms of Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939 (‘Act 1939’), is entitled to receive an interim maintenance under Section 151 of the Code of Civil Procedure, 1908, pending disposal of the said proceedings, V. Lakshminarayanan, J. while holding that the impugned order does not suffer from arbitrariness or capriciousness, said that the Courts have power under Section 151 of the Code of Civil Procedure, 1908 to grant interim maintenance to a Muslim woman who has filed for divorce under the Act 1939, as there is no provision under the Act, 1939 providing for maintenance pending the litigation.
Background:
The wife alleged that her husband and sister-in-law physically and verbally assaulted her. Therefore, she was constrained to leave the matrimonial home and return to her parental home. Thereafter, on husband’s assurance that he would treat her fairly, she joined him at Kochi. However, it was alleged that he continued to ill-treat her and the child. One day , the husband told the wife that he is returning to Belgaum with the child. The wife refused to return to his hometown, and this enraged the husband, and he beat her and took the daughter away to Belgaum.
In 2022, the husband attempted to restore the matrimonial status. The wife also attempted to rejoin him with a fond hope of a happy future. However, she was again abused physically and verbally, thus she left with her daughter to her parents home. Since the wife suffered at the hands of the husband, she decided to initiate proceedings under Section 2(viii) of the Dissolution of Muslim Marriage Act, 1939.
The husband urged that there is no provision of law enabling the wife to seek interim maintenance under Section 151 of the Code of Civil Procedure, 1908.
Analysis and Decision:
After taking note of position of maintenance under Pristine Islamic Law, the Court concluded that even under Pristine Islamic Law, a wife is entitled to maintenance.
The Court said that after the enactment of the Muslim Personal Law (Shariat) Application Act of 1937, the parties would have to be governed only by Muslim Personal law in matters covered under Section 2 of the Act. Maintenance is covered under Section 2 of the Act. Hence, the rule of decision in such cases should be as per Shariat.
After examining the history of the Dissolution of Muslim Marriage Act, 1939 (‘Act’), and the nature and scope of Section 2(ii) and 2(iv) of the Act, the Court noted that if a husband neglects or fails to provide maintenance for a period of two years, the wife is entitled to a decree of divorce. Further, the Court noted the difference between Section 2(ii) and 2(iv). Under Section 2(ii), it is the duty of the husband to maintain his wife, whereas under Section 2(iv), the wife will have to prove that the husband has failed to perform his marital obligations without a reasonable cause.
The Court further examined the right to seek maintenance under Section 151 of the Code of Civil Procedure, 1908, and said that in case the claim of maintenance by a person claiming to be the wife is contested by the husband stating that there is no marriage at all, then the Court cannot grant interim maintenance as the same requires the Court to come to a conclusion that there in fact exists a marriage and consequently, fix the liability on the husband to maintain his wife. However, in case the relationship is not in dispute, there is no bar for the Court to grant maintenance in exercise of its inherent power.
The Court concluded that Section 151 can be invoked to pass orders, which are necessary to meet the ends of justice. The word “inherent” implies that it does not require a Section to confer specific power on the Court, but it inheres by the very existence of the Court. It is something, which is basic or permanent to the Court, and it cannot be removed. The inherent power of the Court is merely recognised by Section 151. Even without the said Section, the Court will continue to have the power as it inheres in it in the matter of things.
The Court said that when the marriage has been admitted and also the birth of the child, then it becomes the duty of the husband to maintain his wife and child by virtue of the pristine Islamic law, and on account of the statutory duty imposed under the Dissolution of Muslim Marriage Act as is seen from Section 2(ii) of the said Act.
The Court took note of State of U.P. v. Roshan Singh, (2008) 2 SCC 488 ,wherein it was held that if there are specific provisions of the CPC dealing with the particular topic and they expressly or necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the CPC. Thus, the Court concluded that the aforesaid judgment is inapplicable to the present case, as:
- There is no provision under the Dissolution of Muslim Marriages Act, 1939 providing for maintenance pending the litigation.
-
An issue of limitation will not arise in a matter of maintenance because when the wife is not maintained by the husband, a fresh cause of action arises month by month.
The Court remarked that, since the legislature cannot contemplate a solution to all the problems that are presented in Society, thus, within the broad framework that is laid down by the legislature, Courts will have to find a solution to the individual cases.
The Court took note of Hajee Mahomed Abdul Rahman v. Tajunnissa Begum, 1952 SCC OnLine Mad 219, wherein it was held that when the relationship between the parties is admitted, the Court has the inherent power to grant interim maintenance.
The Court also noted that the husband is an eminent Pediatric Cardiologist who is acclaimed in his profession. He did not file the affidavit of assets and liabilities as directed by the Supreme Court disclosing as to what his income is. Therefore, applying the rule of thumb, the Trial Judge granted Rs.20,000/- for the wife and the child and Rs.10,000/- towards litigation expenses. The Court said that this is not arbitrary.
Accordingly, the Court dismissed the civil revision petition.
[X v. Y, 2024 SCC OnLine Mad 4539, decided on 02-09-2024]
