R. Kuppusamy vs Kanagalakshmi

S.S. Subramani, J.—Judgment-debtor in C.P.No. 358 of 1988, on the file of Additional Family Court Judge, Madras, is the revision

petitioner.

Petitioner herein filed the above petition for restitution of conjugal rights. Pending litigation, respondent herein moved applications as I.A.Nos.

153 and 154 of 1988, u/s 24 of the Hindu Marriage Act, for interim maintenance and litigation expenses. After hearing both sides, an order was

passed on 11.10.1989, directing the petitioner to pay interim maintenance at the rate of Rs. 400 per mensem from 1.1.1989 till the disposal of the

main petition, and also Rs. 500 towards litigation expenses. A month''s time was granted for payment of the same, which was subsequently

extended on the application of the petitioner.

In spite of time being granted, petitioner did not pay the amount and, therefore, non-compliance of the Courts direction, the main O.P. itself was

dismissed. In the meanwhile, the respondent also moved the Criminal Court u/s 125, Cr.P.C. for getting interim maintenance.

To implement the Order in LA.Nos. 153 and 154 of 1988 and to recover the amount awarded, respondent herein filed E.P.No. 5 of 1991, On

receipt of the notice of E.P., petitioner herein contended that since the main petition itself is dismissed, nothing survives on the interim order.

Respondent also sought for attachment of pension payable to the petitioner, for recovery of the amount due to her.

Petitioner seriously opposed the maintainability of the execution petition and the right of the respondent herein to recover the amount. The main

objection raised was that when the main petition for restitution of conjugal rights itself stands dismissed, order passed on the interlocutory

applications also ceases to have any force and, therefore, inexecutable.

The said contention of the petitioner was rejected by the lower Court, and the execution was allowed to proceed. That order in challenged in

this Revision.

Learned counsel for the petitioner repeated his argument as put forward before the executing court, i.e., the order on interlocutory application

ceases to have any force after the main petition itself stands dismissed.

After hearing learned counsel on both sides, I feel that the said argument cannot hold good. In Krishnan v. Thailambal 1969 (I) M.L.J. 328 a

similar question came for consideration. There, after getting an order of interim maintenance, the main application was allowed to be withdrawn.

The person in whose favour interim order was passed, sought to implement the interim order. The question was, when the main application has

been allowed to be dismissed as withdrawn, whether the interim order could be executed. A learned Judge of this Court (Justice K.S.

Venkataraman) held thus:-

Section 24 of the Hindu Marriage Act contains no limitation that an order for interim maintenance and expenses made thereunder will cease to

have force if the husband against whom the order is passed chooses to withdraw the proceedings for nullity of marriage initiated by him. When the

husband chooses to drag the wife to the Court by filing a proceeding and if it is shown that the wife has no independent income, the husband must

necessarily provide her with interim maintenance and the necessary expenses and he cannot be allowed to wipe out this liability after the order is

passed by choosing to withdraw from the petition. His being allowed to do so would only amount to harassment of the wife, for the expenses might

have already been incurred by the wife.

Section 24 applies not merely to the respondent in the main petition but could also be invoked by the petitioner in the main petition itself, whether it

be the wife or the husband. When the provision is of such a far reaching character, it would defeat the purpose of the provision if the court were to

hold that the benefit of the section is to depend on the caprice of the petitioner in not choosing to proceed with the main petition.

A Division Bench of the Mysore High Court has also taken a similar view in the decision reported in B.M. Muniratnam Naidu v. Shantamma AIR

1971 Mys. 25. in paragraph 4 of the judgment, it has been held thus:-

It is clear from a reading of this section that maintenance and expenses of litigation could be ordered to be paid to the wife or husband, as the case

may be, during the pendency of the proceeding. This provision has been made by the Legislature to see that if the husband or the wife is to contest

an application under any of the provisions of this Act and if he or she has no means for his or her maintenance or to meet the cost of the litigation,

the other spouse should be ordered to maintain the indigent spouse and also pay the expenses of the litigation. This has been done on

considerations of public policy. When once an order has been passed under this section no matter what happens to the petitions thereafter, the

liability to pay maintenance and expenses of the litigation in respect of the period during which the proceedings were pending, cannot be avoided.

The subsequent dismissal of the petition does not exonerate the liability already incurred.

In Sohan Lal Vs. Kamlesh, the question that came for consideration was, whether an application u/s 24 of the Hindu Marriage Act could be

proceeded with when the main petition itself has been disposed, of and whether any order could be passed after the disposal of the main petition.

In that case, application for interim maintenance and litigation expenses was filed. But the same was not disposed of. After the disposal of the main

petition, the wife wanted the interim application to be proceeded with. The jurisdiction of the Court to pass an order u/s 24 of the said Act was

considered. A Division Bench of that Court, after overruling the judgment of a learned single Judge of that Court, held thus:

The object of enacting Section 24 of the Act is that an indigent spouse should not suffer during the pendency of the proceedings because of his/her

poverty. It is the duty of the court to decide such an application expeditiously so that the indigent spouse is not handicapped because of want of

funds. However, if the application u/s 24 is not decided during the pendency of the main petition on account of dilatory tactics of the other spouse

or for come unforeseen circumstances, the whole purposes of the section stands frustrated in case it is dismissed on the ground that after the

decision of main petition it does not survive. Therefore, even if the main, petition is decided finally, the application u/s 24 which is pending decision

can continue. Similarly a revision petition filed against an order u/s 24 continue in spite of disposal of the main petition. (Italics supplied)

In view of the settled legal position, it could be safely concluded that an order passed on an application u/s 24 of the Hindu Marriage Act could be

executed and the fruits of the order could be recovered even after the disposal of the main petition.

The argument of learned counsel for the revision petitioner is rejected.

In the result, the civil revision petition is dismissed with costs.