Skip to content


Bhuneshwar Prasad Vs. Dropta Bai - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 443 of 1962
Judge
Reported inAIR1963MP259; 1963MPLJ346
ActsHindu Marriage Act, 1955 - Sections 24 and 28
AppellantBhuneshwar Prasad
RespondentDropta Bai
Appellant AdvocateR.S. Dabir, Adv.
Respondent AdvocateA.D. Deoras, Adv.
DispositionPetition dismissed
Cases Referred and Sm. Anita v. Birendra Chandra
Excerpt:
.....proceeding, to conduct her or his defence in the proceeding. section 24 clearly contemplates the payment of expenses and maintenance allowance while the rights of the parties are in contest and during the proceedings. it the payment of this amount is not made before the termination of the proceedings and if the party in whose favour the order has been made can afford to wait until after the proceedings are terminated, then it may well be said that the order under section 24 was not necessary for the protection during the proceedings of the party concerned. that provision only says that all decrees and orders made by the court in any proceeding under the act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction..........pay rs. 75/- to the opponent as expenses of the proceeding and rs. 20/- per month as maintenance pendente lite. when the petitioner failed to carry out the directions under section 24, the opponent-wife applied for execution of the order and also prayed that the proceedings initiated on the petitioner's application under section 9 be stayed till he paid the amount he was directed to under section 24. the learned additional district judge made an order staying the suit till 24th september 1962 and directing the petitioner to pay interim maintenance amount and costs of the proceeding before a certain date. it is against this order that the present revision petition has been filed.2. shri dabir, learned counsel appearing for the petitioner, argued that the lower court had no power to stay.....
Judgment:
ORDER

P.V. Dixit, C.J.

1. After the presentation of an application in the Court of the Additional District Judge, Chhindwara, under Section 9 of the Hindu Marriage Act, 1955, by the petitioner Bhuneshwar Prasad for restitution of conjugal rights, the non-applicant wife moved the trial Judge for an order under Section 24 of the Act. On this application the learned Additional District Judge made an order directing the petitioner to pay Rs. 75/- to the opponent as expenses of the proceeding and Rs. 20/- per month as maintenance pendente lite. When the petitioner failed to carry out the directions under Section 24, the opponent-wife applied for execution of the order and also prayed that the proceedings initiated on the petitioner's application under Section 9 be stayed till he paid the amount he was directed to under Section 24. The learned Additional District Judge made an order staying the suit till 24th September 1962 and directing the petitioner to pay interim maintenance amount and costs of the proceeding before a certain date. It is against this order that the present revision petition has been filed.

2. Shri Dabir, learned counsel appearing for the petitioner, argued that the lower Court had no power to stay the proceedings on the petitioner's default to pay the amount he was directed to by the order made under Section 24; that Section 24 of the Act did not give any such authority; and that if the petitioner failed to pay the amount he was ordered to, the non-applicant should have taken proceedings for the enforcement of the order in accordance with Section 28 of the Act.

3. In my judgment, this application must be dismissed. Having regard to the object of Section 24 and the language of that provision, there can be no doubt that a matrimonial action under the Act can be stayed by the Court in the exercise of its inherent power for non-compliance with an order under Section 24. The object of Section 24 is clearly to enable the indigent spouse, who has no independent income sufficient for her or his support and for meeting the necessary expenses of the proceeding, to conduct her or his defence in the proceeding. The basis of an order under Section 24 is that the spouse applying under Section 24 is without means. Section 24 clearly contemplates the payment of expenses and maintenance allowance while the rights of the parties are in contest and during the proceedings. As the marginal note indicates, Section 24 is concerned with maintence pendente lite and expenses of proceedings. The words 'pendente lite.' mean 'while the rights of the parties are in contest.'

The section itself speaks of payment of maintenance and expenses of proceedings during the proceedings. It says, the Court may 'on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum.........'

The words 'during the proceeding' are significant. They not only fix the duration of the maintenance allowance but also the time of the payment of the maintenance allowance and the expenses of the proceeding. The natural meaning of the words 'during the proceeding' is 'throughout the continuance of the proceeding' and 'in the time of the proceeding.' Thus the expression 'order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding means 'order' the respondent to pay to the petitioner the expenses of the proceeding and monthly after the commencement of the proceeding and before their expiration.'

It is easy to see that if payment of maintenance pendente lite and expenses of the proceeding is to be deferred until after the termination of the proceeding, the very basis of an order under Section 24 directing the payment would disappear. Maintenance pendente lite and expenses of the proceeding are ordered to be paid under Section 24 on the ground that the spouse in whose favour the order has been made is without the necessary means to maintain herself or himself during the proceedings and bear the expenses of defending them. It the payment of this amount is not made before the termination of the proceedings and if the party in whose favour the order has been made can afford to wait until after the proceedings are terminated, then it may well be said that the order under Section 24 was not necessary for the protection during the proceedings of the party concerned. It is true that Section 24 does not expressly provide for the situation arising because of non-compliance with an order under that provision. It does not also prohibit the stay of the suit for non-compliance with an order made under it. That being so, there is nothing to prevent a court from exercising its inherent power and staying the suit for the purpose of carrying out the object of an order made under Section 24.

4. Section 28 on which reliance was placed by the petitioner does not stand in the way of enforcement of an order under Section 24, by staying the proceedings until the order is carried out. That provision only says that all decrees and orders made by the court in any proceeding under the Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force. The proceedings are stayed by the Court in the exercise of its inherent powers for non-compliance with an order under Section 24. The stay itself is clearly not the execution of the order. The proceedings are stayed for the purpose of enabling the party in whose favour the order has been made to execute it in the manner provided in Section 28 and recover the amount of maintenance pendente lite and expenses of the proceeding so that he or she may be in a position to defend the proceeding. The view I have taken is fully supported by the decisions in Malkan Rani v. Krishan Kumar, AIR 1961 Punj 42 and Sm. Anita v. Birendra Chandra, AIR 1962 Cal 88, where it has been held that if there is any non-compliance with an order made under Section 24 of the Act, the Court can in the exercise of its inherent powers stay the matrimonial action.

5. For these reasons, I am of the opinion that the learned Additional District Judge was right in staying the proceedings initiated by the petitioner for restitution of conjugal rights when the petitioner failed to comply with an ordermade by him under Section 24. This application is, therefore, dismissed with costs. Counsel's fee is fixed at Rs. 30/-.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //