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Cites 3 docs
The Hindu Marriage Act, 1955
Section 24 in The Hindu Marriage Act, 1955
The Code Of Civil Procedure (Amendment) Act, 1956

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Bombay High Court
Vanmala W/O Maroti Hatkar vs Maroti Sambhaji Hatkar on 13 April, 1999
Equivalent citations: AIR 1999 Bom 388, 2000 (1) BomCR 114, II (1999) DMC 521
Author: B Vagyani
Bench: B Vagyani

ORDER

B.B. Vagyani, J.

1. Heard Shri Mundhe, learned Advocate for the petitioner.

2. This Civil Revision Application raises a question as to what should be the approach of the Matrimonial Court in the matter of enforcement of the order with regard to interim alimony pendente lite.

3. The husband filed petition for divorce under section 13 of the Hindu Marriage Act, 1956 in the Court of the Civil Judge, Senior Division, Nanded. The wife appeared in the divorce proceedings. The wife has got one daughter. She is a penniless woman. She has no means for her survival. She was at the mercy of her brother. The wife filed an application under section 24 of the Hindu Marriage Act and moved the Matrimonial Court for interim alimony. The said application was resisted by the husband. However, the Matrimonial Court allowed the application of wife and granted interim alimony @ Rs. 100/- p.m. to the wife and Rs. 50/- p.m. to the daughter. The Court has also granted Rs. 100/- by way expenses of the proceedings for divorce.

4. The husband did not pay the interim alimony and the costs of the proceedings to the wife in spite of the order of the Court in that behalf. The helpless wife then filed an application and moved the Court seeking intervention of the Court for direction to pay arrears of maintenance and the expenses of the proceedings. This application filed by the wife was also resisted by the husband on the ground that he is unable to deposit Rs. 700/- in lump sum. The husband, while resisting the application filed by the wife, advised the wife that she should file execution petition separately for the purpose of recovery of arrears of maintenance and the expenses of the proceedings.

5. The learned Matrimonial Court rejected the application by order dated 21-1-1991. The learned Judge, by his rejection order, directed the wife to file execution proceedings for the purpose of recovery of arrears of maintenance and the expenses of the proceedings. The learned Judge observed that once an order entitling the respondent wife to receive the maintenance amount is passed, it is not necessary that any other direction deserves to be given.

6. This rejection order is challenged in this Civil Revision Application. The proceedings initiated by the husband is the petition for divorce. The wife has no independent income of her own for bare survival. She is a penniless woman unable to bear the necessary expenses of the proceedings for divorce. Visualising the difficulties to go with such a kind of proceedings, a discretionary power is conferred on the Matrimonial Court in the matter of grant of maintenance pendents lite. The Court, in such a proceedings and under the given circumstance, can award the expenses of the proceedings also. The right of a wife for maintenance is an incident of status or estate of matrimony. In the instant case, the wife who is a penniless woman and who is required to fight out a proceeding of divorce, moved the Matrimonial Court for interim alimony pendente lite for herself and for her daughter. The learned Judge allowed the application for interim alimony and awarded interim alimony to the wife and the daughter. In addition to the interim alimony, the learned Judge granted a paltry amount of Rs. 100/- by way of expenses of the proceeding. A sum of Rs. 100/- is so meagre with which a proceeding like divorce cannot be properly and effectively fought. I failed to understand the logic behind the order awarding such a paltry amount by way of expenses of the proceedings.

7. The Court, under section 24 of the Hindu Marriage Act, is empowered to pass an order of interim alimony which is to operate during the pendency of the main proceedings. The husband appears to have ignored the order of interim alimony passed in favour of the wife and preferred to remain in arrears of interim alimony. He has not deposited Rs. 100/- granted to the wife to meet the expenses of the proceedings. When the wife moved the Matrimonial Court for intervention and sought assistance in the matter of recovery of arrears of maintenance and the expenses of the proceedings, the learned Matrimonial Court gave advice to the helpless wife and directed her to initiate the separate execution proceeding for the purpose of recovery of amount of interim alimony. This approach of the learned Matrimonial Court is manifestly incorrect. The direction of the Matrimonial Court is not only odious advice but ill advice.

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.

9. 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.

10. In the instant case, the Matrimonial Court should have adopted positive approach and ought to have compelled the petitioner husband to deposit the arrears of interim alimony and the expenses of the proceedings in the Court within specified time limit and on his failure, the learned Matrimonial Court could have stayed the very petition for divorce for non compliance of the order passed under section 24 of the Hindu Marriage Act, provided the act of the husband is deliberate. Instead of taking positive approach, the learned Matrimonial Court took negative approach and showed complete helplessness in the matter of enforcement of its own order for payment of interim alimony pendente life. Instead of folding hands and keeping quiet, the Court should always remember that there is a strong weapon in the form of inherent powers as envisaged under section 151 of the Civil Procedure Code in its armoury. In befitting situation and in appropriate circumstance, the Matrimonial Court should not hesitate to invoke the inherent powers under section 151 of the Civil Procedure Code in the matter of implementation of order with regard to interim alimony and the expenses of the litigation by staying the proceedings filed under the Hindu Marriage Act for non-compliance of the order passed under section 24 of the aforesaid Act and by striking off the pleadings of defaulting party.

11. In the result, the Civil Revision Application succeeds. The impugned order under challenge is hereby set aside. The learned Civil Judge, Senior Division, Nanded is hereby directed to pass appropriate orders on the application of wife in the light of the observations made above within two weeks from the date of receipt of this order. Rule made absolute in the above terms. The respondent-husband is hereby directed to pay Rs. 300/- to the petitioner by way of costs of this Civil Revision Application.

12. Revision application allowed.