Anju Bala Jain vs Girish Kumar Jain

Ajit Prakash Shah, C.J.—Whether a wife can file an execution petition claiming interim maintenance for the period when the divorce petition filed by the husband was lying adjourned sine die due to non-payment of maintenance fixed by the Court is the question referred to us by S.N. Dhingra, J, in view of the contradictory views taken by two learned single Judges of this Court. In Jai Rani vs. Om Prakash Saini, reported in 1984 Matrimonial Law Reporter 121, A.B. Rohtagi, J. held that when the court stays the proceedings ''sine die'', lis comes to an end and the maintenance pendente lite must cease. The other view expressed by Sanjay Kishan Kaul, J in Asha Devi vs. Pominder Kumar Chhabra, Ex. F.A. No. 2 of 2003 decided on 7th September, 2006 Manu Patra/DE8969/2006 is that the liability of the husband to pay interim maintenance would not cease till such time as the proceedings are finally decided, so the husband is liable for paying interim maintenance also for the period when divorce petition was lying adjourned sine die. Facts which are material for the consideration of this reference are as follows:

The respondent/husband brought the petition for divorce u/s 27(1)(d) of Special Marriage Act, 1954 against the petitioner/wife. On an application u/s 36 & 38 of the Act by the wife, learned Additional District Judge made an order on 27.1.2004 for maintenance, pendente lite and litigation expenses. He was ordered to pay the petitioner-wife a sum of Rs. 7,700/- as litigation expenses and Rs. 20,000/- per month on account of maintenance w.e.f. 28.4.2003 i.e. the date of the application. The husband did not pay. Instead, he made an application for review under Order XLVII Rule 1 read with Section 114 and 151 of the CPC. As the husband had been deliberately avoiding to comply with the order of pendente lite maintenance, the learned Additional District Judge was pleased to adjourn sine die the divorce petition of the respondent-husband. The respondent thereafter moved another application u/s 151 CPC with the prayer to decide his application for review whereupon the learned Additional District Judge vide his order dated 5.8.2004 was pleased to direct the respondent to deposit the arrears of maintenance within one week in compliance of order dated 27.1.2004 before the said application could be entertained, and accordingly adjourned the said application for 31.8.2004 for compliance and hearing on the said application. On 31.8.2004 learned Additional District Judge was pleased to dismiss the application u/s 151 CPC as the respondent failed to clear the arrears of maintenance in compliance with the order dated 5.8.2004. The petitioner-wife filed execution petition 58A/2006 for execution of the order dated 27.1.2004.

The respondent-husband then filed Civil Misc. Petition No. 11/2005 before this Court against the petitioner challenging the orders dated 5.8.2004 and 31.8.2004. By interim order, this Court directed the respondent to pay 50% of the interim maintenance in addition to further litigation expenses of Rs. 10,000/-. It appears that during the pendency of the proceedings the respondent paid the maintenance at the rate of Rs. 10,000/- p.m. Finally the Civil Miscellaneous Petition No. 11/2005 was dismissed vide order dated 28.4.2006.

According to the petitioner-wife, the total amount to be paid by the husband is more than Rs. 7,00,000/- and he has only paid Rs. 3,52,500/ - and, thus, she pressed for her execution petition for the deficit amount of Rs. 3,75,200/-. Learned Additional District Judge by his order dated 1.6.2007 following the decision in Smt. Jai Rani (Supra) held that a petition adjourned sine die does not continue thereafter and since there is no pending proceeding, the order of maintenance pendente lite will continue only till the stay is ordered i.e. upto 21.7.2004. Being aggrieved, the petitioner has preferred this CM(Main) 1060 of 2007.

We have heard Mr. Sameer Mendiratta, advocate for the petitioner and Mr. Sunil Lalwani, advocate for the respondent.

The judgments in Smt. Jai Rani vs. Om Prakash Saini and Asha Devi vs. Pominder Kumar Chhabra, arose u/s 24 of Hindu Marriage Act. The present case relates to Section 36 of the Special Marriage Act which is in pari materia with Section 24 and reads as under:

Alimony pendente lite-Where in any proceeding under Chapter V or Chapter VI it appears to the District Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such as having regard to the husband''s income, it may seem to the Court to be reasonable.

The object of Section 36 is clearly to enable the indigent wife, who has no independent income sufficient for her support and for meeting the necessary expenses of the proceeding, to conduct her defence in the proceeding. The basis of an order u/s 36 is that the wife applying u/s 36 is without means. Section 36 clearly contemplates payment of expenses and maintenance allowance while the rights of the parties are in contest and during the proceedings. As the heading of this Section indicates, Section 36 is concerned with maintenance pendente lite and expenses of proceedings. The words "pendente lite" mean "while the rights of the parties are in contest." The words "during the proceeding" are significant. They not only fix the duration of the interim maintenance but also the time of the payment of the interim maintenance and the expenses of the proceeding. The natural meaning of the words "during the proceeding" is "through-out the continuance of the proceeding" and "in the time of the proceeding". Thus, the expression "order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding" means order the respondent to pay to the wife the expenses of the proceeding and weekly or monthly maintenance after the commencement of the proceeding and before its expiration.

Section 36 does not expressly provide for the situation arising because of non-compliance with an order under that provision. It does not also prohibit the stay of the suit for non-compliance with an order made under it. That being so, there is nothing to prevent a court from exercising its inherent power and staying the suit for the purpose of carrying out the object of an order made under this Section. Therefore, when the husband does not obey the interim maintenance order passed by the judge, the court can enforce obedience to its order by staying the proceedings if the party in default is the petitioner. This is how the courts enforce their orders. The power of the court to stay the proceedings or to strike off the defence of a defendant in order to compel obedience to its order or to prevent the abuse of the process of the court has long been recognized in several judgments (See: Codd vs.Codd, 1924 Bombay, 132 ; Smt. Malkan Rani Vs. Krishan Kumar, ; Anita Karmokar and Another Vs. Birendra Chandra Karmokar, and Anuradha @ Chanchal Kumari Vs. Santosh Nath Khanna, .)

The question that falls for consideration is as to whether when the judge makes an order to adjourn the proceeding sine die the liability of the husband to pay the maintenance ceases.

A.B. Rohtagi, J. held that maintenance allowance, being in terms pendente lite, must cease when the proceedings are stayed. According to the learned Judge, husband by his own act has made it clear to the court that he is not going to comply with the order awarding maintenance pendente lite against him. It will be incongruous to hold that the husband will be liable to pay maintenance allowance for the period subsequent to the stay even though he is not allowed to go on with the proceedings. We are unable to agree with the view expressed by A. B. Rohtagi, J. It is clear from Section 36 that maintenance and expenses of litigation could be ordered to be paid to the wife during the pendency of the proceedings. This provision has been made by the Legislature to see that the wife is to contest an application under any of the provisions of this Act and if she has no means for her maintenance or to meet the cost of litigation, the husband should be ordered to maintain the indigent wife and also pay the expenses of the litigation. This has been done on considerations of public policy. When once an order has been passed under this Section, no matter what happens to the petition thereafter, the liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending, cannot be avoided. The subsequent dismissal of the petition does not exonerate the liability already incurred. We are supported in our view by a decision of a Division Bench of the Mysore High Court in B.M. Muniratnam Naidu Vs. Shantamma, .

The Calcutta High Court in Bisoke Kumar Dutta Chowdhury Vs. Amita Dutta Chowdhury, was also of the view that where a proceeding has been stayed because of latches on the part of the petitioner, it does not mean that the suit is non est or that it has ceased to be a pending suit. The expression '' during the proceeding'' as used in the Section has been held to mean ''during the pendency of the proceeding''. Therefore it was held that in spite of stay, the suit is undoubtedly pending, as a contra view would give an unfair advantage to a party of not paying maintenance and to keep the suit stayed for an indefinite period of time.

The Madras High Court in P.S. Devarajan Vs. R. Geetha, has held that when a court stays the proceedings and directs that no order will be passed thereon, it is not terminating the proceedings.

Another learned single Judge of this court, S.N. Kapoor, J, in Suman Bala Vs. O.P. Arora, has held that the moral and legal obligation on the husband to support his wife does not cease to exist by staying the proceedings. The court''s dealing with matrimonial matters while staying proceedings and while refusing to allow defence are not enforcing this obligation. They are just enforcing rules of equity. Equity acts on the conscience and conduct of a person who is guilty of neglecting his family, wife and children, is so unconscionable that the court feels that he should not be allowed to pursue his case. He who seeks equity must do equity. And a person who is not equitable in discharge of the family obligation is not entitled to any relief from a matrimonial court. In view of the foregoing discussion, we hold that the wife can claim interim maintenance for the period when the petition filed by the husband was lying adjourned sine die due to non-payment of maintenance fixed by the Court. The reference is answered accordingly.

Let the papers be placed before the learned single judge for further orders on 24th February, 2009.