N. Balasubramaniam vs Smt. B. Saroja

R.S. Narula, J.—The facts relevant for the disposal of this appeal lie in a very narrow compass. N. Balasubramaniam appellant (hereinafter referred to as the husband) made a petition for divorce under the Hindu Marriage Act on July 21, 1958. Notice of the said petition was served on Mrs. B. Saroja (hereinafter referred to as wife) on 16th August, 1958. She made an application u/s 24 of the Act on September 18, 1958. The application was contested by the husband, but was granted by the order of the trial Court dated July 18, 1959. By that order the husband was directed to pay to the wife Rs. 700 as necessary expenses of the proceedings and further to pay her monthly Rs. 100 as maintenance during the proceedings relating to the divorce petition. This amount not having been paid immediately, the wife applied to the trail Court on August 21, 1959 for staying further proceedings in the divorce petition. In his written reply to that application the husband stated on 29th August. 1959 inter alia, that he had no objection to the proceedings being stayed till the decision of his intended appeal against the order of the trial Court dated 18th July. 1959 by the High Court. Such an appeal was filed by him on 2nd September, 1959 but was unfortunately for him dismissed in limine by this Court on September 3, 1959. In the meantime the trial Court had on the application of the wife dated 21st August, 1959 and in view of the concession made by the husband in his reply dated 29th August, 1959 directed stay of all further proceedings in the divorce petition and had adjourned the same sine die. It was not before 8th January, 1965, long alter the commencement of the execution proceedings that the husband woke lip and got his diverse petition brought back before the trial Court and had it dismissed as withdrawn.

On July 8, 1963 the wife made an application for recovery of the amounts due to her under orders of the trial Court dated 18th July 1959 by way of execution of the same. The application for execution was contested by the husband on the ground that it was barred by time as having been made more than three years after the date of the order sought to be executed i.e., three years after 18th July, 1959 and also on the ground that the divorce proceedings having been given up by him there was no question of his paying her Rs. 700 on account of "Necessary expenses of the said proceedings". Similar objection to the payment of monthly maintenance was also raised.

By order dated 21st November, 1934. Shri S.S. Raikhy, the learned Senior Sub-Judge, Simla, held that the execution application in so far as it related to the claim of Rs. 700 and also in so far as it related to the claim of Rs. 100 p.m. for the period ending 30th June, 1960 was barred by time as those amounts had become due more than three years prior to the making of the application for execution. He further held that the order of the trial Court dated 29th August, 1959 by which the divorce proceedings were stayed did not in any manner affect the liability of the husband to comply with the earlier order for payment of the maintenance amount.

Mr. I.K. Mehta, the learned counsel appearing for the husband has argued before me that the stay of proceedings in the main case also amounted to stay of operation of the order for payment of the maintenance amount. He concedes that the effect of such an interpretation of that order would be that the direction for payment would again become operative after the dismissal of she husband''s appeal by the High Court on 3rd September, 1959. He then submits that in view of the hardship which the husband had suffered under a mistaken impression about his legal position, the Court should direct, following the law laid. down in Pilcher v. Pilcher (1956) 1 All. E. R. 463, that maintenance allowance for one year only be paid by him to the wife.

I think, the very premises on which the first argument is based, are misconceived. Stay of further proceedings in the Divorce petition could not be equated to a direction staying the operation of the order for payment of the monthly maintenance. Such an order could possibly be prayed for by the husband under Order 41 rule 5(2) of the Code of Civil Procedure, but no such prayer was ever made. Even if such a prayer were to be made and the operation of the order had been stayed till the husband could file an appeal in the High Court and till its disposal, the order for payment of the maintenance would have be in revived immediately on the dismissal of the appeal by the High Court and maintenance allowance would become payable for the entire period including the time during which the operation of the order was suspended unless otherwise directed by the appellate Court. In Pilcher v. Pilcher (1956) 1 All. E. R. 463 relief was granted to the husband because of a statutory provision contained in section 76 of the Magistrates'' Courts Act, 1952 which reads as follows:-

It will be a matter entirely for the Magistrate''s discretion in the light of the evidence before him whether to enforce or to remit as he thinks proper the whole or any part of the sum due under the registered order.

In that case in March, 1952 a registered order had been passed under which the wife obtained a maintenance allowance in the Magistrate''s Court. In November, 1953 a Domestic Proceeding Court purported to revoke that order. In May, 1955 the Divisional Court held that the purported revocation was invalid and that the, registered order of the Magistrate was still effective. On a complaint by the wife in the Magistrate''s Court to enforce the arrears which then amounted to �396 17 s. 10 d. a question arose whether whole or any part of that sum should be remitted u/s 76 of the Magistrate''s Courts Act, 1952 reproduced above. In exercise of the powers conferred on the Magistrate''s. Court by the above said statutory provision, the amount due was remitted except to the extent of the amount of the maintenance for one year. No provision in the Hindu Marriage Act authorizes this Court to remit any amount due under an order passed u/s 24 of the Act except in the course of the hearing of an appeal against that order itself. The order of the trial Court u/s 24 of the Act having been confirmed by this Court by the dismissal of the husband''s appeal against the same, it is not within the jurisdiction of this Court to go into that order passed in execution proceedings and to grant any relief to the husband. Whatever may be the hardship that might have been caused to the husband by the alleged mistaken impression under which he remained for quite same time, I regret, I am unable to interfere with the decision of the trial Court which is perfectly in accordance with law.

I, therefore, hold:-

(i) That an order staying further proceedings in a divorce petition does not automatically stay the operation of the direction u/s 24 of the Hindu Marriage Act for payment of maintenance pendent lite as the suit remains pending even during the time it remains adjourned sine die

(ii) that when operation of an interlocutory order u/s 24 of the Act is stayed under Order 41 rule 5(1) or (2) of the Code the order is deemed to have remained in force during the period of stay if the appeal against it is dismissed in the absence of any specific direction to the contrary given by the appellate Court.

(iii) that the mere fact of the husband ultimately withdrawing his main petition under the Act, does not absolve him of his liability to the wife to pay her the amount of maintenance pendent lite ordered u/s 24 of the Act, which has accrued due till the date of dismissal of the main petition.

(iv) that the spouse in whose favor an order u/s 24 of the Act has been made, can execute that order through court only to the extent of the amount which became payable to the applicant within 3 years of his application for execution.

(v) that the law laid down in Pilcher v. Pilcher (1956) 1 All. E. R. 463 has no application to a case u/s 24 of the Act, and

(vi) that a Court trying a matrimonial cause has no jurisdiction to remit any recoverable amount due u/s 24.

This appeal, therefore, fails and is dismissed but in view of the possible hardship caused to the husband and in view of the fact that he has already got the divorce petition dismissed, the parties are directed to bear their own costs in the execution proceedings and in this appeal.