Gurdev Kaur vs Balwinder Singh

V.K. Jhanji, J.—This order shall dispose of the execution application filed by the appellant for the recovery of the maintenance pendente lite. This application has been filed by the wife in her appeal which was filed against the judgment of learned Addl. District Judge, Bhatinda, whereby the petition filed by the husband Balwinder Singh u/s 9 of the Hindu Marriage Act for restitution of conjugal rights has been allowed and in consequence thereof a decree against the wife has been passed. In the present appeal on an application filed by the wife u/s 24 of the Hindu Marriage Act, she was awarded Rs. 600/- per month as maintenance pendente lite from the date of the application. Previously too wife had filed an application for recovery of the amount and after notice some amount was paid. Further payment has not been made and that has led to the filing of the present application.

Notice of this application was given to the Counsel for the respondent for 19.2.1997. Thereafter case has been adjourned five times on the request of the Counsel for the respondent but despite these adjournments no amount has been paid by the husband. In these circumstances, I am of the view that the sole purpose of the respondent in not making payment to the appellant is to harass her.

A Division Bench of this Court in Smt. Malkan Rani Vs. Krishan Kumar, , in the context of execution of the order u/s 24 of the Hindu Marriage Act, has held that there being no provision in the CPC under which pendente lite maintenance and litigation expenses can be recovered, the Court has to exercise inherent power to advance the cause of justice though in the process the indigent spouse must benefit. The Court also held that when the Court is exercising this inherent power, then it has to take into consideration all circum- stances of the case and then come to the conclusion whether the justice requires the proceedings to be adjourned or to be stayed til payment is made. In cases where defaulter''s spouse has initiated proceedings under the Hindu Marriage Act, stay of proceedings may not be adequate and other steps may have to be taken to put the indigent spouse in funds to prosecute the proceedings. Reference be also made to judgments in Sumarti Devi v. Jai Parkash 1985 (1) HLR 84, and Smt. Santosh v. Hari Singh 1985(2) HLR 557. In the present case respondent has been given enough opportunity to comply with the order granting maintenance, but he has neither complied with the order nor he has shown any sufficient cause for non-compliance of the same. In these circumstances, the decree of restitution of conjugal rights passed in his favour deserves to be set aside.

Accordingly, this appeal is allowed and judgment and decree of the learned Additional District Judge, Bhatinda is set aside. In consequence thereof petition u/s 9 of the Hindu Marriage Act filed by the respondent shall stand dismissed.

No order as to costs.