Prashant Jha vs Isha Jha

Heard.

The challenge in this appeal is to the judgment and decree dated 28.02.2023 (Annexure A-1). The divorce petition filed by the husband was dismissed on the ground that he has failed to pay interim maintenance pendente lite under section 24 of the Hindu Marriage Act, 1955 (for short "Act of 1955") to the wife/ respondent. This is the short question involved in this case.

The facts of the case would show that husband/ appellant filed an application seeking divorce against the wife/ respondent under Section 13(1) of the Act of 1955 on various grounds. The wife after her appearance filed an application under Section 24 of the Act of 1955 seeking interim maintenance pendente lite and litigation expenses. Thereafter, by order dated 05.03.2020 amount of Rs. 5,000/- as litigation expenses and interim maintenance pendente lite of Rs. 9,000/- per month was awarded. Further, when the case came up for hearing on 28.02.2023, the issue of non payment of interim maintenance pendente lite was slated before the learned Family Court and the Learned Family Court dismissed the divorce petition filed by the husband on this ground.

Learned counsel for the appellant/ husband would submit that the dismissal of divorce petition on the ground of non payment of interim maintenance pendente lite cannot be done as the grant of divorce is governed under Section 13 of the Act of 1955. He further placed his reliance in the case of Manilal Maganlal Mistry Vs. Jasumatiben D/O Mistry Ramjibhai . He further submits that such ground having not been incorporated under Section 13 either allowing or dismissal of divorce petition cannot be ordered for and the dismissal order of the learned Family court necessarily need interference by this Court.

Per contra, learned counsel for the respondent/ wife would submit that interim maintenance pendente lite having been granted in favour of the wife should not be allowed to be deliberately disobeyed by the appellant/ husband. He further submits that the order of the learned Family Court is well merited and do not call for any interference and the appellant/ husband may be directed to pay the arrears also.

We have heard learned counsel for the parties and perused the documents filed along with the appeal.

Section 13 of the Act of 1955 deals with grounds of divorce enumerated therein. The party seeking divorce has to prove either of the grounds enumerated in Section 13 to get the divorce meaning thereby the application for divorce is confined to the proof as per statute which are required. Admittedly the non payment of interim maintenance pendente lite and litigation expenses either by wife or husband do not find place in the Act of 1955 as a ground of dismissal. The reliance placed by learned counsel for the appellant in the case of Manilal Maganlal Mistry Vs. Jasumatiben D/O Mistry Ramjibhai would squarely apply to the facts of this case wherein the Court observed that penalty of dismissal is a serious penalty which cannot be imposed in the absence of statutory provision.

The Statute may provide that if a party to a litigation does not carry out an order made by the Court his suit or proceeding shall stand dismissed but unless such a provision is made, no suit or proceeding can be dismissed by the Court. If a party does not carry out an order made by the court the Court may take such appropriate proceedings against the party by way of contempt or otherwise which are available to it or the party in whose favour the order is made may adopt proceedings in execution.

The statutory provision of Section 13 of the Act of 1955 or any provisions of Civil Procedure Code do not contemplates or entitle the Court to dismiss the suit on grounds of non compliance or non payment of expenses or pendente lite. Therefore, we are of the view that Learned Family court acted beyond its jurisdiction to dismiss the suit filed by the husband/ appellant.

The court under Section 24 of the Act of 1955 is empowered to pass order of interim maintenance pendente lite and litigation expenses which is to operate during pendency of the main proceeding. If such order is ignored which exists to appear in this case i.e. the appellant/ husband ignored to pay the amount to the wife and remained in arrears to pay the litigation expenses and the pendente lite  maintenance. In such circumstances, the court can invoke its inherent jurisdiction under Section 151 of the CPC.

Undoubtedly, the remedy of execution can be sorted but execution is not an easy remedy as it does not provide shortcut to the destination.

The same analogy has been adopted by the Bombay High Court in the case of Vanmala Vs. Maroti Sambhaji Hatkar reported in AIR 1999 Bombay 388 in para 8 & 9. The para 8 & 9 are reproduced herein below:-

" 8. The remedy of execution is not an easy remedy. The execution does not at all provide short cuts to the destination. The difficulties of a successful litigant begin when he succeeds to obtain an order in his favour. Driving out a penniless wife to initiate a separate execution proceedings for the purpose of recovery of arrears of interim alimony and expenses of the proceedings frustrates the very purpose and spirit of section 24 of the Hindu Marriage Act. The approach adopted by the learned Matrimonial Court makes the very purpose of section 24 of the Hindu Marriage Act redundant and nugatory.

The learned Matrimonial Court, it appears, laboured under wrong impression that he lacks jurisdiction in the matter of enforcement of the order in the nature of interim alimony. He has completely forgotten the very purpose of section 151 of the Civil Procedure Code. A Court can, in exercise of its powers under section 151 of the Civil Procedure Code, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumaciously flouts the order of the Court. There is a power in the Court to make such orders as may be necessary for the ends of justice and to prevent any abuse of process of the Court. The Matrimonial Court, therefore, was under duty to invoke the inherent powers under section 151 of the Civil Procedure Code and should have compelled the erring husband to deposit whole of the arrears of interim alimony and the expenses of the proceedings in the Court within certain point of time. If in spite of passing of such orders, the party under liability flouts the order deliberately, the Court can stay the petition or the proceedings of divorce if the erring party is a petitioner. Similarly, if the erring party is the respondent, the Court can strike off the defence of such a party if it is found that the respondent is deliberately flouting the orders of the Court. "

In the facts of this case if the wife/ respondent is expected to takeout the execution proceeding to recover the arrears of amount of pendente lite and litigation expenses the very purpose of the order may frustrate. Therefore, the Court in exercise of its inherent power of Section 151 of CPC will not sit at the fence as spectator to allow the proceeding for the wife to become porus. Since the arrears of pendente lite has not been paid in this case, we in exercise of our power under Section 151 of the CPC direct to stay the proceedings of the divorce case filed by the husband/ appellant until the remaining amount in its entirety is paid. The husband shall pay the outstanding amount of pendente lite within further period of 45 days and the parties shall appear before the Learned Family court on 17th August, 2023.

In the view of the aforesaid observation, the appeal is disposed off.