Kannamma vs Y. Subramaniam

S.S. Subramani, J.—Respondent in H.M.O.P. No. 18 of 1991, on the file of Subordinate Judge''s Court. Poonamallee, is the revision

petitioner.

Petitioner in the said H.MO. P. (husband) filed the same for divorce on the ground that the wife deserted him without any reasonable cause. On

her entering appearance, she filed an application u/s 24 of the Hindu Marriage Act for getting interim alimony and litigation expenses for herself and

her children. The Court awarded a sum of Rs. 600/- per month towards the maintenance of the wife and a sum of Rs. 300/- per month for each

child towards their maintenance from the date of filing of the petition, i.e., 14.2.1991, and a sum of Rs. 1,000/- towards litigation expenses. That

order was passed on 8.11.1995.

Against that order, a revision was taken to this Court in C.R.P. No. 1063 of 1996. Jagadeesan, J. dismissed the same even at the stage of

admission, on the ground that he did not find any illegality in the order. But, while disposing of the revision, the learned Judge gave a direction to

the Court below to dispose of the main H.M.O.P. No. 18 of 1991 within three months from the date of receipt of copy of that order and report

compliance of the same to this Court. The order was passed on 25.4.1996.

After the matter was posted for trial before the Court below, the wife filed a memo stating that the husband has not obeyed the order of Court,

and without payment of the sums as directed by Court, trial of the H.M.O.P. should not be proceeded with. That memo was filed on 24.6.1996.

The same was seriously opposed by the husband. By the impugned order, the Court below directed the respondent (husband) to pay interim

maintenance to the children alone and directed the trial to proceed. It further found that there was direction by tins Court to dispose of the main

O.P. within three months. Therefore, it did not find any ground to stay the proceedings. It is that part of the order that is challenged in this revision.

The purpose of granting interim maintenance is to enable the party to conduct the defence without being handicapped by poverty. It is also said

that if the party is directed to take out execution for enforcement of the order, the very purpose of the Section is defeated. For a person who is

starving or has no means to sustain herself, naturally, she will not be interested in prosecuting the litigation. The effect will be, there will be no

defence in the real sense. If the order is not complied with, and the trial is also directed to be proceeded, the person who is guilty of violating the

order will be in an advantageous position of not only not paying the amount as directed by Court but also will get a favourable order in the main

petition. In this connection, I would like to refer to a few decisions of Courts. Our High Court had occasion to consider a similar question in the

decision reported in 1988 1 L.W. 44, Raju I v. Devaki, wherein this Court ruled that if a person who is directed to pay certain amount disobeys

the order, the Court shall not proceed with the trial. It is bound to stay the same till the order is implemented. This Court held thus :

It has been held by this Court that Section 151, C.P.C., could be invoked to stay the trial of an O.P. in which the petitioner fails to pay

maintenance granted u/s 24 of the Hindu Marriage Act. Therefore, when a spouse fails to pay interim maintenance as ordered by Court, the Court

has no other alternative than to stay the trial of the O.P.

In I (1990) DMC 596, Narayana Nadar v. Jayakodi Ammal, Ratnam, J., as he then was, has held that in cases where the husband is a

respondent. Court can even strike off the defence. It was held in that case that the direction for payment of interim alimony and litigation expenses

to a financially weaker spouse during the pendency of the matrimonial proceedings is only to erase the financial inequality and it is common

knowledge that the path of execution is not smooth. In the context of the prevailing circumstances in our society, the payment of interim alimony

and litigation expenses, pendente lite to a spouse, who is financially weaker than the other, with a view to enable him or her to conduct the

proceedings in a matrimonial cause and secure speedy justice, should be regarded as a sine qua non of justice and the argument that resort to

execution proceedings can be had against the defaulting spouse or that other proceedings can be taken, cannot be countenanced, especially when

enforcement of such order otherwise than by execution, is neither prohibited nor excluded by Section 28-A of the Act. Thus, on a careful

consideration of the facts and the circumstances and also the relevant statutory provisions, the Court below cannot be stated to have committed

any error in striking out the defence of the petitioner herein. To the same extent is the decision of the Punjab and Haryana High Court reported in

the same Volume at page 35 Kanti Devi v. Balbir Singh. There also, a learned Judge of that High Court said that the defence of the spouse who

violates the direction of Court is liable to be struck off.

In II (1990) DMC 486,Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shyamala, the Andhra Pradesh High Court had also

occasion to consider a similar question, and it was held thus :

I am of the view that to secure the ends of justice and to prevent the abuse of the Court''s process, striking out the defence can be resorted to u/s

151, CPC. The intention of the petitioner is to drive the respondent to take recourse to execution u/s 28 and to stay the main proceedings. If

execution has to be resorted to staying the main proceedings, the petitioner would be achieving the object of protracting the proceedings. That

would also be encouraging the parties to flout the order of the Court and to delay the proceedings which are expected to be expeditious. In such

circumstances, striking out the defence of such a defaulting party would be a proper order and the Trial Court was right in passing the said order.

In II (1992) DMC 545, Mangalam v. P.S. Krishna Pilloi, a case before the Kerala High Court, Paripoornan, J., as he then was, has held thus :

....the Court below had inherent jurisdiction u/s 151 of the Code of Civil Procedure, to give effect to its order. It had inherent jurisdiction to

prevent the abuse of the process of the Court. In giving effect to its order, the Court below would have been justified to strike off the defence,

even if there is no such provision in the Hindu Marriage Act.

In a recent judgment of the Bombay High Court reported in Vinodchandra Gajanan Deokar Vs. Smt. Anupama Vinodchandra and Others, , a

learned Judge of the Bombay High Court said that in cases where interim alimony as directed by Court is not paid, the father can be prevented

from having access to the child. The learned Judge further observed that passing such an order will be in the welfare of the child. He was of the

further view that the father must be denied access to the child until he displays evidence of contrition, penitence and reform; in short, until he pays

up the arrears of interim maintenance and shows readiness to pay from month to month the amounts ordered.

In Ghasiram Das Vs. Srimati Arundhati Das and Another, , a learned Judge of that High Court considered various procedures that could be

taken in the case of non-compliance of the order. In paragraphs 5 and 6 of the order, learned Judge held thus :

It is no doubt correct that the order directing payment of interim maintenance can be enforced by taking recourse to a execution proceedings, but

the aforesaid provision enabling the party to file an execution proceeding does not preclude the Court to enforce its own order in order to prevent

abuse of the process of Court. An indigent spouse who is financially handicapped to place materials before the Court and to fight out the litigation

in which the order wars passed cannot be expected to initiate another legal proceeding and realise her dues. In such a situation some Courts have

directed stay of the proceedings until the order is complied with. Those cases mostly relate to non-payment of litigation expenses in the absence of

which the indigent spouse would probably not be able to place materials before the Court for a fair decision of the case. But grant of interim

maintenance stands slightly on a different footing, if the matrimonial proceeding is stayed. Interim maintenance allowed to an indigent spouse is

generally a mere pittance and non-payment thereof might prejudically affect his/ her survival. Stay of the proceedings in such circumstances may

not be a proper solution to the problem. The next alternative by which the Courts may enforce the order is to strike out the pleadings of the

defaulting party. Whether it will be permissible in law for taking such a course requires consideration. The Delhi High Court in a decision reported

in Anuradha @ Chanchal Kumari Vs. Santosh Nath Khanna, , has observed that it is open to the Court to enforce obedience of its order or to

prevent abuse of its process by staying the proceedings or striking off the defence or by temporarily suspending its operation without prejudice to

any other action that may be taken according to law. The phrase ""striking off the defence"" would be applicable where the defendant is the

defaulting party and where the plaintiff is the defaulter it naturally follows that his pleading can also be struck down for non-compliance of the

order. Their Lordships of Punjab High Court in the decision reported in Smt. Malkan Rani Vs. Krishan Kumar, , have expressed that Section 28

(now Section 28-A) gives the right to a party to recover such an amount by taking execution proceedings but it does not affect the Court''s power

to exercise its jurisdiction equitably and in such a way as to prevent abuse of its process.

In my considered view, the Court can enforce its own order also by taking recourse to the aforesaid process in order to prevent the abuse of the

process of Court. In other words, the purpose of Section 28 of the Act ^should not be allowed to defeat by driving the indigent spouse to enforce

the order in an execution proceeding in every case; the Court in appropriate circumstances can enforce its order by striking out the pleadings as

has been done in this case.

In ''Mayne''s Hindu Law & Usage'' - 14th Edition (1996) at page 345, the learned author has said thus :

Non-payment of alimony, effect of.

Where the husband failed to pay the amount of maintenance pendente lite and litigation expenses awarded by the -Court, the appeal against the

order of dismissal of petition for restitution of conjugal rights filed by the husband was dismissed for non-payment of maintenance and litigation

expenses. An order allowing interim alimony was passed making it specifically clear that payment of alimony would be condition precedent for the

further prosecution of the main proceedings but the respondent did not pay the same properly and the Court proceeded with the proceeding

without ensuring its payment. The appellant wife could not appear in the proceedings for want of funds. Evidence was recorded in her absence. It

was held that the Trial Court was not justified in law in proceeding with the trial of the case without ensuring that the interim alimony and Court

costs ordered to be paid by the Court had been paid to the appellant and erred in passing a decree of divorce. The case was remanded for fresh

trial in accordance with law. As the object of this provision is to enable the party conduct the defence without being handicapped by poverty, the

Court can grant stay of the proceedings on being moved by the party or not, in the exercise of the inherent power of the Court, to see that the

order granting interim maintenance and expenses under this Section is complied with. To relegate the party to take out execution for the

enforcement of the order is a difficult and risky pathway for the realisation of the amounts granted and may result in making such order wholly

nugatory and ineffective as the main proceeding itself may be heard even before the amount of expenses for the litigation is realised by process of

execution. There is also nothing in the Hindu Marriage Act which is opposed to the staying of the matrimonial action. The Court can stay the main

proceedings under the Act, if the husband neglects to pay the maintenance awarded under this section, as such conduct should not be encouraged.

The husband is liable to pay maintenance.. even during the period during which the proceedings suit was stayed. Where the Court awarded interim

maintenance to the wife and a minor child, if that order is not complied with, the Court can deny access to the husband to the minor child which

was ordered earlier, till he pays the entire amount due and expenses and his readiness to continue to pay the amounts thereafter.

Striking out defence for the non-compliance of the order is not justifiable as such order leads to failure of justice.

In Sarala Devi v. Bharat Kumar, it was held that wilful disobedience of the order to pay maintenance will amount to civil contempt.

Finally the decision of the Bombay High Court also has been taken note of where it has been held that non-payment of maintenance in wilful

disobedience of orders of Court will amount to civil contempt : Vide I (1988) DMC 487 : (1988)1 HLR 408 (Bom.), Saraiff Devi v. Bharat

Kumar.

In view of the said position of law, I do not think that the order of the Court below could be sustained for a moment. When an order of Court

to pay interim alimony has become final, the direction to the Court below to pay interim maintenance to the children alone will amount to passing an

inconsistent order. When the wife says that she cannot maintain herself, asking her to defend her proceeding amounts to failure of justice, m such

an event, the husband gets an upper hand in conducting the litigation. She is entitled to file a memo and get a direction from Court that till the

amount is paid, she cannot appear in Court.

The reasoning of the lower Court that this Court has directed it to dispose of the main O.P. within three months, as one of the reasons for

dismissing the memo filed by the wife, cannot be justified. If the husband is not paying the amount as directed, the lower Court should have

exercised the option of staying the proceedings, or should have dismissed the petition itself for non-compliance of direction of Court, with liberty to

the petitioner (wife) to execute the order u/s 28 of the Hindu Marriage Act. The Court is also empowered to initiate action against the defaulting

party for wilful default. A direction of the Court should not be taken to the disadvantage of the other spouse who had obtained an order of interim

maintenance in her favour.

Learned Counsel for the respondent submitted that huge amount is due and within a short time, the amount could not be paid.

There is no justification for such an argument. Only because he failed to pay the maintenance, the arrears has come to this extent. From 1995,

no attempt has been made by the respondents to pay the maintenance at least in instalments. He could have at least shown some bona fides by

paying a portion of the amount, and seeking extension. Without resorting to such a thing pleading inability to pay the amount cannot be accepted.

Further, even if he is unable to pay, there is a statutory duty on his part to maintain his wife and children. When he marries her, he gives an

assurance that he will maintain her according to his status. Having failed to discharge his duty, and also without keeping up that assurance, his plea

of no means or incapacity to maintain, cannot be recognised by a Court of law.

Learned Counsel for the respondent prayed for some time to enable the husband, respondent herein, to pay the amount.

From 1995 to 1997, no amount has been paid. The wife had to come to this Court again in revision, which is also part of the litigation. It is

because of the conduct of the husband alone, she had to come to this Court. Under the above circumstances, I pass the following order :

The entire maintenance due to the children should be paid within a month from this day, if not already paid. Alongwith the same, and within the

same period, one-third of the arrears as on this date towards alimony to the wife should also be paid. The balance two-third due to the wife shall

be paid within one month thereafter. Till that period, the proceedings before the Court below shall stand stayed. If the order of the Court below is

not obeyed, petitioner herein (wife) is entitled to initiate proceedings against the husband for disobedience of orders of Court At the same time, the

lower Court also will consider whether it should continue to stay the trial or whether it should dispose of the main petition by dismissing the same

for non-compliance of the order. If the Court feels that some more time has to be given for compliance of the order, this order shall not stand in the

way. In such a case, further proceedings of the main petition shall stand stayed. Even during the period of stay, respondent is bound to pay

maintenance to both the children and alimony to the petitioner at the rites fixed by the earlier order of the Court below. If the Court below is

inclined to grant some time for the husband to make the payment, it should not adjourn the main H.M.O.P. indefinitely, and it is made clear that

whenever the trial begins, the entire amount due as on that date must have been paid.

Petitioner had to file this revision petition because of the default committed by the husband. Therefore, in this revision also, he is liable to pay

the litigation expenses. Including Advocate''s fees, the same is fixed at Rs. 5,000/-

The civil revision petition is allowed with costs as indicated above.