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Jai Rani Vs. Om Parkash Saini - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 386 of 1981
Judge
Reported inAIR1984Delhi301; 1984(6)DRJ281; 1984RLR309
ActsHindu Marriage Act, 1955 - Sections 24
AppellantJai Rani
RespondentOm Parkash Saini
Advocates: L.D. Adlakha, Adv
Cases Referred(See Latham v. Latham
Excerpt:
.....with permission to the husband to revive it after complying with the order. the wife's application for execution was allowed up to the period the case was alive and not beyond that date. the wife appealed.; that when the court stays the proceedings, the lis comes to an end and the maintenance allowance which is pendente lite must cease. - - (5) in my opinion this contention is not well founded. the words 'where in any proceeding under this act' and the phrase 'during the proceedings' clearly show that it is a temporary order the life or which is conterminous with the proceedings. until stay is ordered the proceedings are clearly pending......the husband can review the petition after complying with his order dated 12-5-1980. so it was a stay of proceedings to aliments and purposes. if the proceedings are stayed, as happened in this case, i cannot see how it can be argued plausibly that the proceeding are still pending or continuing. the husband has not complied with the order of the court. the judge has thereforee stayed the proceedings, with the stay of the proceedings, the operation of the order under section 24 is suspended. this means that the husband will be liable to pay maintenance allowance for the period up to stay of proceedings but not beyond that. in case he review the proceedings he will course be liable to pay all arrears of maintenance which all due during this period of stay and revival. the proceedings.....
Judgment:

A.B. Rohatgi, J.

(1) The respondent husband brought a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (the Act) against the wife the petitioner. On an application under Section 24 of the Act by the wife the Additional District Judge made an order on 12-5-1980 for maintenance pendente lite and litigation expenses. He ordered the husband to pay Rs. 400.00 as litigation expenses and Rs. 100.00 per month on account maintenance with effect from 18-2-1980, the date of the application. For payment the Judge fixed 23-5-1980.

(2) The husband did not pay. So on 26-5-1980, the judge made this order :-

'THE file be consigned to record room for the present. The petitioner can revive the petition after complying with order dated 12-5-1980.'

The wife made an application for execution of the order of maintenance pendente lite and litigation expenses under Section 28A of the Act. The Judge issued warrant of attachment for the recovery of litigation expenses and maintenance allowance for the period from' 18-2-1980 to 26-5-198D. But he refused to levy execution for the period after 26-5-1980.

(3) The wife's .case is that she is entitled to recover term the husband monthly maintenance allowance for the period even after 26-5-1980 on the ground that the proceedings have not terminated and that she is entitled to monthly maintenance allowance till the determination of the proceedings. The Judge rejected this argument. By order dated 11-2-1981 he decided that there was no liability of the husband to pay maintenance pendente lite after the proceedings were consigned to record room. In other words, he held that the wife was entitled to recover maintenance allowance at the rate of Rs. 100.00 per month up to the period of 26-5-1980 when the proceedings were consigned to record room but not after that. From the order dated 11-2-1981 the wife has brought this revision petition.

(4) The short question for decision is whether the wife can claim maintenance allowance as long as the husband's petition is not dismissed or decreed. Mr. Adalakha, learned counsel for the wife, says that the order dated 12-5-1980 in this case will entitle the wife to get from the husband monthly maintenance allowance so long as the case of the husband is not decided. One of the two things must happen, he says Either the petition under Section 9 of the Act is decreed or withdrawn.

(5) In my opinion this contention is not well founded. The marginal note of the section is very significant. It is 'Maintenance pendente lite and expenses of proceedings'. The section expressly says that the order of maintenance which the judge makes under Section 24 of the Act is to last only for the period of the proceedings. The words 'where in any proceeding under this Act' and the phrase 'during the proceedings' clearly show that it is a temporary order the life or which is conterminous with the proceedings. If there is no proceeding before the judge, Section 24 cannot be invoked. The question in what is the meaning of the term 'proceedings' as used in Section 24.

(6) When the judge made the order under Section 24 the husband was bound to obey it. But if he does not obey in terms of the order passed by the judge the court can enforce obedience to its order by staying the proceedings if the party in default is the petitioner. If the order is in favor of the petitioner, and the respondent is in default, the court will strike off the defense. This is how courts enforce their orders. The power of the , court to stay the proceedings or to strike off the defense of a defendant in order to compel obedience to its order or to prevent the abuse of the process of the court has long been recognised. (See Codd v. Codd Air 1924 Bom 132; Masih v. Masih : AIR1941All93 ,' Malkan Rani v. Krishan Kumar, ; Ami a v. Birendra Chandra, : AIR1962Cal88 ; Bhuneshwar Prasad v. Dropta Bai : AIR1963MP259 ; B.M Nidu v. Shantamma, Air 1971 Mysore 25; Anuradha v. Santoshnath, : AIR1976Delhi246 ; A. Suseelamma v. A. Raghunadha 1967 M.L.R. and Prithpal Singh v. Anup Kaur 1978 Hlr 59.

(7) This is exactly what the judge did in this case. On 26-5-1980 he consigned the case to the record room. In other words he stayed the proceedings. Because in his order dated 26-5-1980 he made it clear that the husband can review the petition after complying with his order dated 12-5-1980. So it was a stay of proceedings to aliments and purposes. If the proceedings are stayed, as happened in this case, I cannot see how it can be argued plausibly that the proceeding are still pending or continuing. The husband has not complied with the order of the court. The judge has thereforee stayed the proceedings, with the stay of the proceedings, the operation of the order under Section 24 is suspended. This means that the husband will be liable to pay maintenance allowance for the period up to stay of proceedings but not beyond that. In case he review the proceedings he will course be liable to pay all arrears of maintenance which all due during this period of stay and revival. The proceedings remain in a state of animated suspension. Maintenance pendente lite is pending adjudication, it is true. But if the spouse ordered to pay maintenance is in default the court stay the proceedings. The defaulting spouse is not allowed to use the judicial process because of non-compliance. The proceedings by staying them are brought to an end capable of being revived only on condition that the defaulting spouse submits to the unquestioned authority of the court which he once refused to recognise. This is the sanction judges have in their hands to see that no one flouts their orders with impunity.

(8) The is proceedings and the provisions of Section 24 are coextensive in time and space. If there is a proceedings before the judge he can exercise the power given to him under Section 24. It is clear to me that the .husband is not interested in the carriage of the proceedings. If he does not wish to continue the proceedings, he cannot be compelled to do so. To accept Mr. Adlakha's argument will amount to this that execution can be levied against the husband for the period subsequent to the stay of proceedings even though he has shown no willingness to continue the procedings. By this own act he has made it clear to the court that he is not going to comply with the order awarding maintenance pendente lite against him. It will be incongruous to hold that the husband will be liable to pay maintenance allowance for the period subsequent to the stay even though he is not allowed to go on with the proceedings.

(9) Proceedings may be stayed on compliance with an order of alimony; Annesley v. Annesley (1913) 471 L.T. 38: Leavis v. Lenvis (1921) P 299. In England non-compliance with order to pay alimony (if able) still a contempt, though no longer enforceable by attachment, except by means of judgment summons; and the court may, in its discretion, refuse to permit the party so in contempt to take a further step in the litigation of Marczuk v. Marczuk (1956) 1 All E.R. 657 (See Redden on Divorce 14th (1983) ed. Vol. I.P. 730). Following English decision the Punjab High Court has taken the view that the husband is guilty of contempt when he does not pay the maintenance pendente lite though he has the ability to pay. (See Malkan Rani v. Krishan Kumar, ).

(10) The only question in the case is as to the period up to which maintenance is due. In my opinion the lis between the parties is at an end when the court stays the proceedings. It follows that the maintenance allowance, being it terms pendente lite must cease when the proceedings are stayed. Up to that date he has to pay. But beyond that date there is no liability to pay which may be enforced by attachment in execution. (See Latham v. Latham (1961) 164 E.R. 1011).

(11) The petition does not continue after stay. There is no pending proceedings. Until stay is ordered the proceedings are clearly pending. The order to pay maintenance pendente lite continues in force until stay is ordered.

(12) These are monthly allowance which husband by court order pays Wife for maintenance pending a suit for divorce or other proceedings under the Act. It is awarded temporarily pendente lite, pending the outcome of a matrimonial cause between the spouses. The amount is in the court's discretion. This is maintenance pending proceedings. It is not a permanent financial provision as is contemplated in Section 25 of the Act.

(13) Mr. Adalakha told me that recently the wife has instituted a suit: for maintenance against the husband in which is there an order against him For payment of Rs. 125.00 - per month. The husband has now brought proceed ings for divorce against the Wife which are also pending. In those proceedings. the Judge has transferred the order made in the maintenance suit.

(14) In my opinion, the judge was right in the order he made. For these reason the revision petition is dismissed. Since no one has appeared to defend the case, there will be no order as to costs.


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