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Ram Swaroop Vs. Janak W/O. Ram Swaroop - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.O. No. 60-M of 1966
Judge
Reported inAIR1973P& H40
ActsHindu Marriage Act, 1955 - Sections 10 and 24; Code of Civil Procedure (CPC), 1908 - Sections 151
AppellantRam Swaroop
RespondentJanak W/O. Ram Swaroop
Cases ReferredSmt. Parkash v. Lachhman Singh
Excerpt:
.....passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - after hearing the learned counsel for the parties, i ordered that the appellant should pay the arrears of maintenance and the litigation expenses upto date till 13-12-1971 to the respondent-wife and in case he failed to pay the said arrears, it will be open to the counsel for the respondent to contend that the appeal be dismissed. in my..........that case, the trial court directed the husband, who was the petitioner in that case, to pay the wife maintenance pendente lite and litigation expenses but the said order was not complied with. the wife then made an application before the trial court that the proceedings be stayed till the said order was complied with. that application was rejected by the trial court. on appeal filed in this court, the case was referred to the division bench and the appeal was accepted with costs. it was held that keeping in view the provisions of the hindu marriage act, it is obvious that the realisation of the amount as ordered under section 24 of the hindu marriage act by taking execution proceedings in accordance with the provisions of the code of civil procedure must plunge the indigent spouse.....
Judgment:

1. Ram Sarup appellant filed a petition under Section 10 of the Hindu Marriage Act, 1955. This petition was resisted by the respondent wife and was dismissed by the learned Senior Sub-Judge., Amritsar vide his order dated 8-3-1966. It is against this decree that the appellant has filed this appeal.

2. The respondent-wife claimed maintenance pendente lite and litigation expenses before this court and P. D. Sharma J., (as he then was) vide his order dated 14-12-1966, ordered that Smt. Janak respondent be paid maintenance allowance at the rate of Rs. 40/-per mensem from the date of her application in addition to Rs. 200/-as litigation expenses. It was ordered that the maintenance allowance and the litigation expenses should be paid within two months from that date. This order of this Court has not been complied with.

3. The case came up before me on 11-11-1971 when Mr. Aggarwal the learned counsel for the respondent, pointed out that the appellant had not paid the litigation expenses and the maintenance allowance as ordered by this court. After hearing the learned counsel for the parties, I ordered that the appellant should pay the arrears of maintenance and the litigation expenses upto date till 13-12-1971 to the respondent-wife and in case he failed to pay the said arrears, it will be open to the counsel for the respondent to contend that the appeal be dismissed. This order of mine in fact made the hearing of the appeal conditional on the payment of the arrears of maintenance and the litigation expenses.

4. It is admitted by Mr. Roop Chand, the learned counsel for the appellant, that till today no maintenance allowance or the litigation expenses, as directed by this Court have been paid to the respondent by the appellant. It is, therefore, contended by Mr. Aggarwal, the learned counsel for the respondent, that the appeal filed by the husband appellant be dismissed as he has filed to comply with the conditional order passed by this court. On the other hand, Mr. Roop Chand, the learned counsel for the appellant contended that the hearing of the appeal be only deferred till the payment of such expenses, and it should not be dismissed as this Court has no power to pass such an order.

In a case reported in M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd., Barabanki, (U. P ) v. Kanhayalal Bhargava, AIR 1966 SC 1899, it was held by their Lordships of the Supreme Court that whatever limitation are imposed by construction on the provision of Section 151 of the code of Civil Procedure they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. It was made clear that the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Civil Procedure Code. But that power will not be exercised it its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code.

In my view, when conditional orders are passed by this Court, the inherent power vested under Section 151 of the Code of Civil Procedure can be exercised in order to see that the said orders are complied with. There is no specific procedure for the compliance of the said order either under the Hindu Marriage Act or in the Civil Procedure Code and there is no other provisions forbidding the same course being adopted. A similar matter came up for consideration before a Division Bench of this Court in a case reported in Smt. Malkan Rani v. Krishan Kumar, AIR 1961 Punj 42. In that case, the trial court directed the husband, who was the petitioner in that case, to pay the wife maintenance pendente lite and litigation expenses but the said order was not complied with. The wife then made an application before the trial court that the proceedings be stayed till the said order was complied with. That application was rejected by the trial court. On appeal filed in this court, the case was referred to the Division Bench and the appeal was accepted with costs. It was held that keeping in view the provisions of the Hindu Marriage Act, it is obvious that the realisation of the amount as ordered under Section 24 of the Hindu Marriage Act by taking execution proceedings in accordance with the provisions of the code of Civil Procedure must plunge the indigent spouse into another lengthy and unpleasant litigation and moreover, the matrimonial Court will find it difficult, if not impossible, to decide the case satisfactorily or expeditiously, which will result in denial of justice to the person in whose favour the order under Section 24 of the Hindu Marriage Act has been passed.

These observations of their Lordships will meet the argument of Mr. Rup Chand that the amount in question could be realised by filing execution proceedings under the Code of Civil Procedure. It was further held by their Lordships that in cases where the defaulter's spouse has initiated proceedings under the Hindu Marriage Act, stay of proceedings may not be adequate and other steps may have to be taken to put the indigent spouse in funs to prosecute the proceedings, and if the defaulter wilfully neglects or wilfully refuses to comply with the order then there is no reason why contempt proceedings in accordance with law should not be taken against such a defaulter. In my opinion the appellant in the present case has wilfully and contemptuously failed to obey the directions of this Court by not paying even a single penny to the respondent-wife nor there is any plea raised by the learned counsel for the appellant that the appellant is prepared to pay a part of the amount having become due. In this view of matter, merely by staying the hearing of the appeal for indefinite time will not meet sword on the respondent-wife for all years to come because there is not an iota of hope that the appellant will discharge his duty by complying with the orders of this Court. Similar view was taken in a case reported in Mahalingam Pillai v. Amsayalli, 1956 Mad LJ 259, in which it was held that the orders granting alimony pendente lite could not only be executed by the wife but where these payments are made a condition precedent for the taking up of the trial of the petition or hearing of an appeal therefrom and if these are not complied with, the petition or appeal can be dismissed.

5. Mr. Rup Chand, the learned counsel for the appellant, relied on a Single Bench decision of this Court reported in Dr. Tarlochan Singh v. Smt. Mohinder Kaur, AIR 1963 Punj 249 for the proposition that in that case the hearing of the appeal was only stayed and the appeal was not dismissed. That was a case decided on its own facts where a number of other conditions on the facts of that case were laid. Since I find that in the present case the appellant is not prepared to pay even a single paisa to the respondent-wife, it would be in the interest of justice to dismiss this appeal for non-compliance with the conditional order passed by this Court. Similar view was taken by Tewatia, J., in an unreported case Smt. Parkash v. Lachhman Singh, F. A. O. NO. 28-M of 1969, D/-13-10-1970(Punj) as in that case the husband who was the respondent in the appeal was not allowed to present his case to the Court because of his non-compliance with the order of maintenance pendente lite passed by this Court.

6. For the reasons recorded above, this appeal is hereby dismissed with costs.

7. Appeal dismissed


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