Narayana Nadar vs Jayakodi Ammal

Ratnam, J.—This Civil Revision Petition, at the instance of the husband, is directed against the order of the Court below in I.A. No. 176 of

1986 in H.M.O.P. No. 30/1985, Sub-Court, Tenkasi, striking out the defence of the petitioner, for non-compliance with an order dated 23-9-

1986 passed in I.A. No. 19 of 1986 for payment of interim alimony and litigation expenses to the respondent. On 1-7-1985, the respondent

herein filed H.M.O.P. No. 30 of 1985, Sub-Court, Tenkasi, praying for the relief of restitution of conjugal rights. Stating that she had no

independent income for her support and maintenance and also to meet the expenses of the proceedings, she filed I.A. No. 19 of 1986 praying that

the petitioner should be directed to pay interim alimony of Rs. 300/- p.m. and Rs. 500/- towards litigation expenses. That application was resisted

by the petitioner on certain grounds, which need not be noticed in extenso at this stage. Suffice it to say that on 23-9-1986, the Sub-Court,

Tenkasi, passed an order directing the petitioner to pay a sum of Rs. 200/- p.m. as interim alimony from the date of main application and a sum of

Rs. 300/- towards the litigation expenses. Aggrieved by this, the petitioner preferred C.R.P. No. 975 of 1987 and while disposing of that C.R.P.,

Sathiadev, J. stated : ''It is obligatory on the part of the petitioner herein to continue to pay alimony at the rate of Rs. 200/- per month. If it results in

excess payment, it can be adjusted later. As regards litigation expenses, there is no serious dispute on this aspect.'' It is thus seen that the direction

of the Court below to pay interim alimony at the rate of Rs. 200/- per month and the litigation expenses of Rs. 300/- had been maintained and

upheld. Even so, the matter was remitted, a purposeless and futile exercise and the remit order is not only unintelligible, but ex facie bears the

stamp of total absence of clarity and lack of appreciation of the circumstances warranting or justifying a remand. It would be desirable to bear in

mind that even this Court should not readily pass judicial orders remitting matters for the mere asking as it were, keeping matrimonial matters

unnecessarily pending for a long time, causing great inconvenience to the weaker of the spouses, and serving absolutely no purpose. The

respondent herein filed I.A. No. 176 of 1986 u/s 151, C.P.C., bringing it to the notice of the Court that the petitioner had not complied with the

order dated 23-9-1986, and that such non-compliance was deliberate and contumacious, deserving the striking off of the defence of the petitioner

herein in H.M.O.P. 30/85. That application was resisted by the petitioner on the ground that the remedy of the respondent herein, if any, was to

execute the order in I.A. No. 19/86 and not to seek the striking off of the defence of the petitioner. It is significant that it was not the case of the

petitioner that payments had been made by him pursuant to the order in I.A. No. 19 of 1986 or that the disobedience of the order, was not

deliberate or contumacious. The Court below found that the petitioner had not deposited any amount either pursuant to the order in I.A. No.

19/86 or C.R.P. 975/87, and in that view, struck off the defence of the petitioner and allowed the application filed by the respondent herein

praying for the relief of conjugal lights in H.M.O.P. No. 30/85. It is the correctness of this that is questioned in this Civil Revision Petition.

The principal question that arises for consideration is, whether the court below was right in striking off the defence for non-compliance with the

order in I.A. No. 19 of 1986 directing the petitioner herein to pay interim alimony and also litigation expenses, to the respondent herein. Earlier, it

has been noticed that it is not the case of the petitioner that any payment was made and it has therefore, to be taken that the Court below was right

in holding that no payment at all bad been made by the petitioner pursuant to the order passed in I.A. No. 19/86 or C.R.P. 975/87. The objection

raised by the petitioner is that orders for payment of interim alimony and litigation expenses, should, u/s 28A of the Hindu Marriage Act,

(hereinafter referred to as the Act), be enforced as decrees of Court made in the exercise of its original civil jurisdiction and that without doing so,

the respondent cannot be permitted to seek the relief of striking but of the defence. The purpose behind Section 24 of the Act is that parties to a

matrimonial cause should not take undue and unfair advantage of a superior financial capacity, to defeat the rightful claims of a weaker party. The

proceedings u/s 24 of the Act serve a limited purpose, i.e. during the pendency of the proceedings to enable the weaker party to establish rights

without being in any manner hindered in that attempt by lack of financial support. It is true that Section 28A of the Act provides for the

enforcement of orders of execution; but the process of such execution is a long and arduous one and if execution is to be considered the only

method of enforcement, the matrimonial proceedings have to be stayed till the execution is completed. To put it differently, to secure the benefit of

an order u/s 24 of the Act by resort to the process of execution, the parties may have to endure, in some cases at least, an endless wait. The

enforcement by execution would not also further the objects of the Act. Matrimonial proceedings should be dealt with expeditiously and relief

afforded to the parties. That is why a special provision is made u/s 21B of the Act to the effect that proceedings should be tried as expeditiously as

possible and concluded within six months from the date of service of notice and that the trial of the proceedings should also be continued day-to-

day until its conclusion. A further provision is also made that an appeal should also be heard as expeditiously as possible and should be concluded

within three months of the service of notice of appeal. Section 21-B thus clearly gives expression to the need for speedy and expeditious disposal

of matrimonial causes. To drive a party to resort to execution proceedings for the purpose of realising the interim alimony and litigation expenses

would be obviously to prolong the proceedings, resulting in the denial of justice. The initiation of other kinds of proceedings, if any, for purposes of

enforcing the order, would also be subject to enormous delay and result in the failure of justice. It is In this background of the avowed policy of

speedy disposal of matrimonial matters and giving relief to the parties and the provisions made In that regard in the Act to secure that object, the

question of the power to strike out the defence has to be considered. There is no specific provision in the Act to the effect that non-compliance

with an order passed by the Court in the cause of matrimonial proceedings, would enable the other party to seek the striking out of the defence of

the defaulting party. Further, u/s 151, Code of Civil Procedure, which is indisputably applicable to proceedings under the Act, the Court may

exercise its powers for serving the ends of justice or for prevention of the abuse of the process of Court. In this case, it may be that the petitioner

had not done or failed to do anything, amounting to the abuse of the process of Court. Even so, in order to serve the ends of justice, particularly in

matters relating to matrimony, it cannot be regarded that the Court is helpless when a party flouts and disobeys an order of Court for payment of

interim alimony and litigation expenses and thereby puts the other party at a disadvantage in the matter of the conduct of the proceedings,

necessarily leading to a delay in the conclusion of such proceedings. Under those circumstances, the order of striking out the defence of the

defaulting party, would subserve the ends of justice and only such an order would enable the fulfilment of the objects of the Act of preventing in

equity in the matter of conduct of the matrimonial proceedings and securing speedy relief as well. It is found that the respondent had initiated

proceedings for restitution of conjugal rights and by the non-payment of the interim alimony and litigation expenses by the petitioner, if the

proceedings are to be stayed (ill the amount is realised by execution, many years would roll by in the interval and in the absence of any effective

method of stopping the ageing process of the parties, the relief that may ultimately be made available, may become illusory or even futile. It seems

to me that the only method by which a person opposing matrimonial proceedings under the Act, could be compelled to further the objects of the

Act and to secure speedy disposal of the matrimonial causes and reliefs prayed for therein, is by striking out the defence of the defaulting party, In

this case, it is seen that the petitioner, while accepting that he had not made any payment whatever to the respondent pursuant to the order passed

in I. A. No. 19 of 1986, had also not denied that such disobedience was deliberate and contumacious. Further, the petitioner had not even stated

that given some time, he would pay the amounts to the respondent. 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 won 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, specially when enforcement

of such orders otherwise than by execution, is neither prohibited or 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. The Civil Revision Petition is, therefore, dismissed with costs.