N.M. Miabhoy, J.
1. This is a revision petition made under Section 115, Civil Procedure Code and it is directed against an order, dated 13th December 1962, passed by the learned Civil Judge (Senior Division), Rajkot, in Civil Suit No. 601 of 1961 whilst exercising the jurisdiction conferred upon him by the Hindu Marriage Act (No. XXV of 1955) (hereafter called 'the Act'). Two questions fall to be decided in this petition The first, which is raised by Mr. Vyas, the learned advocate for the opponent, is (i) whether a revision petition lies to this Court and the second, raised by Mr. Shukla, the learned advocate for the petitioner (ii) whether the learned Civil Judge (Senior Division) had jurisdiction to make the impugned order and if so, whether the order suffers from the infirmity that it was illegally or irregularly made in the exercise of that jurisdiction.
2. The facts are as follows:
Petitioner is the husband and opponent is the wife. The parties were married on or about 3rd of December 1954. The parties separated in or about June of 1956. Then opponent filed Civil Suit No 601 of 1961 in the Court of the learned Civil Judge (Senior Division) Rajkot on 16 February 1961 for a decree for judicial separation. In that suit on 18th of April 1962 she made an application for alimony pendente lite and for an order for payment of the expenses of the suit. On 30th of August 1962 the learned Judge made an order directing petitioner to pay a sum of Rs. 45/to opponent to meet the expenses of the suit and to pay a sum of Rs. 30/every month with effect from 18th of April 1962 by way of alimony pendente lite. It is an admitted fact that petitioner did not comply with the above order. He neither paid anything towards the interim maintenance nor did he pay anything towards the expenses of the suit. On 6th November 1962 opponent made an application that the defence of petitioner should be struck off on the ground that he had disobeyed the order dated 30th of August 1962. Petitioner opposed that application by his written statement dated 13th November 1962 and contended that he had not complied with the order aforesaid as he was unable to make any payment. After hearing both the sides the learned Judge passed the impugned order on 13th December 1962 ordering that the defence of petitioner should be struck off. The present revision application is directed against that order.
3. The first point which is by way of a preliminary objection is based on Section 28 of the Act. That section reads as follows:
All decrees and orders made by the Court in any proceeding under this 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:
Provided that there shall be no appeal on the subject of costs only.
The submission of Mr. Vyas is that under this section all decrees and orders of the Court exercising matrimonial jurisdiction are appealable irrespective of the fact whether such decrees or orders are or are not appealable under any other law for the time being in force. Mr. Vyas contends that in order that a decree or order made by a matrimonial Court can be made the subject matter of an appeal the only condition which is required to be fulfilled is that it must be made in any proceeding under this Act. On the other hand Mr. Shuklas submission is that every decree or order made by a matrimonial Court is not made appealable. According to him only a decree or order passed under some provision of the Act can be made the subject matter of an appeal. The answer to the aforesaid two rival contentions depends upon the true construction of Section 28.
4. Mr. Vyas first refers to the decision of a Division Bench of this Court in Kadia Harilal Purushottam v. Kadia Lilavati Gokuldas reported in 2 Gujarat Law Reporter 536. The question which the Bench was called upon to decide was whether an order for payment of permanent alimony under Section 25 of the Act was appealable or not. One of the arguments which was advanced before the Division Bench in support of the proposition that the order was not appealable was based upon the expression under any law for the time being in force used in Section 28. The argument was based upon a decision of a single Judge of the Bombay High Court in Prithviraj sinhji Mansinghji v. Bai Shivprabha kumari reported in 62 Bombay Law Reporter 47-A.I.R. 1960 Bombay 315. In that Bombay case the question which arose for decision was whether an order granting interim relief under Section 24 of the Act was or was not appealable. Mr. Justice Gokhale of the Bombay High Court held in that case that that section did not provide for an appeal against every order made by the Court in proceedings under the Act but that it provided for an appeal only against an order which fell within the definition of the word - decree under Section 2(2) of the Civil Procedure Code 1908 or which was an order against which an appeal was provided under that Code. On this reasoning the learned Judge held that the order granting interim relief under Section 24 was not appealable The Division Bench of Court did not agree with this interpretation of Section 28 of the Act. First of all it pointed out that the expression decree and order as used in Section 28 could not bear the same meaning which was assigned to those words in the Civil Procedure Code. The Division Bench pointed out that if those words were interpreted in the same manner as the words decree and order used in the Civil Procedure Code then none of the decrees and orders made under the Act would be appealable and the object of Section 28 would be rendered nugatory in so far as it dealt with the question of the appealability of decree and order. After so pointing out the Division Bench proceeded to consider the argument based upon the expression any law for the time being in force. In dealing with this argument the Division Bench made at page 541 the following observations:
No doubt the language 8 the section is not very happy. The words may be appealed from under any law for the time being in force are capable of bearing the meaning which Mr. Chhaya desires us to giveit seems to us that the intention of the Legislature was not to refer parties to any other enactment for the purpose of ascertaining whether the decrees or orders passed under the Act were appealable or not. Having regard to the language used by the Legislature which we are painfully conscious is not very apt some meaning has to be given to the words under any law for the time being in force. Those words on a true construction of the Act are intended to provide for the forum before which the appeal is to be preferred. They may well relate to the procedure in connection with the appeals which may be filed under Section 28.
Therefore the argument of Mr. Vyas is that what the Division Bench firmly decided was that the expression any law for the time being in force was only intended to provide for the forum before which the appeal was to be preferred. He submits that there is no firm decision that the procedure for filing appeals is prescribed under the Act. He says that the Bench has only made a passing observation that those words may also refer to the procedure in connection with the appeals which may be filed under Section 28. Mr. Vyas says that the decision of the Division Bench that decrees and orders referred to in Section 28 relate to decrees and orders made under the Act is given with reference to the facts of that particular case. He contends that a number of arguments which can be urged in support of the construction for which he contends were not placed for consideration before the Division Bench. He submits that these arguments should be considered and answered before the point is decided. He contends that though the decision of the Division Bench that an order for permanent alimony under Section 25 of the Act is appealable is binding on me the reasoning behind the decision is not so binding in a case where the question for decision is whether an order passed in a proceeding under the Act itself is or is not appealable. He contends that the question to be decided by me is clearly different from that which fell for decision by the Division Bench and that the arguments which he submits require consideration on their own merits. In support of his contention Mr. Vyas makes the following points. Firstly he contends that the language of the section does not justify the conclusion that only decrees and orders made by the Court under the Act are appealable. He submits that the decrees or orders referred to in Section 28 are qualified by the words in any proceeding under this Act. According to him the emphasis is on the expression any proceeding. He contends that if decrees and orders referred to in Section 28 were to be confined only to decrees and orders made under the Act then that interpretation would ignore the expression in any proceeding. He contends that unless there are strong reasons for omitting the latter expression from consideration this Court would not be justified in doing so. Secondly he contends that the section speaks of all decrees and orders and does not limit their scope. Thirdly he relies upon the proviso to the section. According to him that proviso supports his submission that not only decrees and orders made under the Act are appealable but that every decree and order made by a matrimonial Court is appealable the only qualification being that such decrees and orders must be passed in a proceeding under the Act. He contends that otherwise the Legislature would not have provided that there shall not be an order of costs only. He contends that the proviso is based on the assumption that an appeal can be made against every order under the main provision. He contends that if the section were confined only to decrees and orders made under the Act then there was no necessity for the Legislature to except an order as to costs from the purview of appealability. He contends that unless and until the words all decrees and orders were intended to be used in the broadest sense there was no reason for the Legislature to introduce the aforesaid proviso. Mr. Vyas concedes that the interpretation which he seeks to place upon Section 28 must necessarily lead to the conclusion that such orders as orders for issue of summons or for granting or refusing inspection interrogatories or adjournment or for summoning witnesses or for issue of commissioner for admitting or rejecting documents will become appealable. In fact - he concedes that his interpretation will make every order of a matrimonial Court made during the pendency of a matrimonial action appealable. Mr. Vyas contends that such an interpretation does not make the provision either unreasonable or absurd. He contends that even if such a result follows there is no reason for cutting down the scope of the section on the principle that the provision is absurd or unreasonable. In support of these contentions Mr. Vyas relies upon the following passages on pages 3 4 and 5 in Maxwell on Interpretation of Statutes - Eleventh Edition:
The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one and otherwise in their ordinary meaning and the second that the phrases and sentences are to be construed according to the rules of grammar It is very desirable in all cases to adhere to the words of an Act of Parliament giving to them that sense which is their natural import in the order in which they are placed. From these presumptions it is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them where the language under consideration is susceptible of another meaning unless adequate grounds are found either in the history or cause of the enactment or in the context or in the consequences which would result from the literal interpretation for concluding that that interpretation does not give the real intention of the Legislature. If there is nothing to modify nothing to alter nothing to qualify the language which the statute contains it must be construed in the ordinary and natural meaning of the words and sentences. The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without in the first place reference to cases....
When the language is not only plain but admits of but one meaning the task of interpretation can hardly be said to arise. It is not allowable says Vattelto interpret what has no need of interpretationSuch language best declares without more, the intention of the law-giver and is decisive of it. The rule of construction is to intend the Legislature to have meant what they have actually expressed. It matters not in such a case what the consequences may be. Where by the use of clear and unequivocal language capable of only one meaning anything is enacted by the Legislature it must be enforced even though it be absurd or mischievous. The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust arbitrary or inconvenient the meaning conveyed may be it must receive its full effect. When once the meaning is plain it is not the province of a court to scan its wisdom or its policy. Its duty is not to make the law reasonable but to expound it as it stands according to the real sense of the words Whereas here the legal issues are not open to serious doubt our duty is to express a decision and leave the remedy (if one be resolved upon) to others. More over the mere fact that different judges place a different meaning upon words or phrases in a statute does not mean that the words or phrases are necessarily ambiguous: each member of an appellate tribunal must first ask himself whether the words are clear or not.
5. Before considering the submissions of Mr. Vyas it will be useful to undertake the task of understanding the ordinary meaning of Section 28 un-trammeled by any of the principles and considerations derivable from case-law or any text-book. For it is clear that resort can be bad to all or any of the above principles only if a careful consideration of the provision of that section reveals any ambiguity or inconsistency. It is clear that Section 28 deals with two topics viz. (i) the topic of enforceability and (ii) the topic of appealability. Both these topics have been mentioned in relation to decrees and orders. Decrees and orders the enforceability made or the appealability of which are mentioned are decrees and orders by the Court in any proceeding under this Act. As regards the first topic the section provides that decrees and orders shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its original jurisdiction. As regards appealability it says that decrees and orders so made are appealable. Now as regards the first topic it is quite clear that the decrees and orders which are to be enforced cannot be the same as the decrees and orders which the Court enforces in exercise of its original jurisdiction. The two concepts must necessarily be different. The same expression decrees and orders has been used both in relation to the decrees and orders of the matrimonial Court and the decrees and orders of the Court of original civil jurisdiction. The latter must necessarily be decrees and orders within the meaning of the Civil Procedure Code by which the Court of original civil jurisdiction is governed. Therefore whereas for the purpose of determining the manner in which the decrees and orders of the matrimonial Court are to be enforced we must turn to the manner in which decrees and orders of the Court of original civil jurisdiction are enforced for the purpose of ascertaining the meaning of the expression decrees and orders made by the matrimonial Court we must turn to the provisions of the Act itself. Therefore the second submission of Mr. Vyas does not appear to have any substance. As pointed out by the Division Bench in Kadia Harilals case the decrees which are to be passed by the matrimonial Court do not satisfy the definition of the expression decree as used in the Civil Procedure Code. The Act itself provides for passing of specific decrees and specific orders such as decrees for restitution of conjugal rights for judicial separation for nullity of marriage and for divorce and orders for interim maintenance for expenses of proceedings for permanent alimony for permanent maintenance custody of children and disposal of property. Therefore for the purpose of enforceability of decrees and orders it is quite clear that the Legislature has in mind these decrees and orders which are mentioned specifically in the Act and in respect of which jurisdiction has been conferred by the Act upon the matrimonial Court. If once the meaning of the expression decrees and orders had been so ascertained then it is not difficult to answer the question as to which decrees and orders are made appealable under the Act. It will be noticed that the Legislature has made the same decrees and orders appealable which have been made enforceable in the manner in which decrees and orders of the Court exercising original civil jurisdiction are enforceable. That appears to be the plain and grammatical meaning of the provision contained in Section 28 of the Act relating to the appealability of decrees. But the question for consideration is whether the expression in any proceeding used at the commencement of Section 28 gives a different meaning to the expression decrees and orders or casts any doubt upon the aforesaid interpretation. Now the expression proceeding may be understood in two senses. It may be understood in the sense of that which is commenced by the institution of a petition under the Act and that which ends with either a decree or an order of the matrimonial Court i.e. a matrimonial cause proceeding or it may be understood as only a proceeding which takes place within the matrimonial cause proceeding which commences after the petition for the relevant purpose is presented The latter may be described as a sub proceeding in a matrimonial cause. In my judgment Mr. Vyas contention can be right only if the term - proceeding - in Section 28 is construed as a sub-proceeding in the latter sense. But it is quite clear that if that word is construed in that sense then there will be two serious objections to such an interpretation. The first is that such a sub-proceeding would be totally inapplicable to the expression decree because the provisions of the Act show that a decree is passed as a result of the final determination of the main point in dispute and terminates the lis. The second objection is that such an interpretation will render the whole section nugatory inasmuch as only subsidiary orders passed in the proceeding will be enforceable and appealable whereas the decrees and the main orders passed by the matrimonial Court will remain outside the pale of enforceability and appealability. In my judgment the term proceeding has been used in the first sense that I have indicated above and that is emphasized by the fact that the Legislature has not used the term proceeding by itself and alone but has used the expression proceeding under this Act. What requires to be construed is not only the word proceeding alone but what is required to be construed is the whole expression in any proceeding under this Act and in my judgment if the whole expression is fairly and properly understood it cannot mean a sub-proceeding in a matrimonial cause. The argument based upon the proviso has also no substance. That proviso can only apply to those decrees and orders which are made appealable. All that the proviso means is that though a decree or order may be appealable if the appeal is to be directed only on the question of costs decided by such decree or order then no appeal shall lie. Therefore in my judgment in the context in which the words decrees and orders are used they can have only one meaning and therefore there is no necessity to resort to all or any of the other principles or aids referred to in the passages quoted from Maxwell on which reliance is placed by Mr. Vyas. I am fortified by the fact that Mr. Justice B.N. Banerjee of the Calcutta High Court has taken the same view of Section 28 of the Act which I have done in Smanita Karmokar and Anr. v. Birendra Chandra Karmokar reported in : AIR1962Cal88 and with great respect I agree with the conclusion of the learned Judge for the reasons aforesaid.
6. As regards the merits of the case it is first of all necessary to ascertain the power under which the learned Civil Judge has passed the order. The application below which the impugned order is passed does not state the law under which it was made. The learned Civil Judge also does not indicate in his order the law under which he was making the order. There is no doubt whatsoever that the Act itself does not confer any power on the Court to strike off a defence in a matrimonial proceeding. It is also not contended that any such power is conferred upon the Court by any rule framed by the High Court under the Act. Therefore to support the order one must necessarily turn in the first instance to the Civil Procedure Code which is applied to matrimonial proceedings by Section 21 of the Act. The only specific provision which is contained in the Act for striking off the defence to which my attention was drawn is that contained in Order 11 but obviously that rule applies only where a party fails to comply with any order to answer interrogatories or to make discovery or inspection of documents. Therefore Mr. Vyas turns to Section 151 of the Civil Procedure Code for justification of the impugned order. Now that section as is well known emphasizes that the Civil Procedure Code is not exhaustive and is enacted to save the inherent power of the Court. What is saved by that section is the power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Having regard to the facts of the case I am unable to come to the conclusion that the learned Judge has decided that the order for striking off the defence of petitioner was necessary for the ends of justice or to prevent the abuse of the process of the Court. In fact Mr. Vyas concedes that it can hardly be said that the ends of justice require that the defence of a party must be struck off simply because a party has disobeyed the Courts order. The disobedience can hardly be said to involve any failure of justice on the merits of the dispute of the order of the Court for payment of maintenance Even as regards the disobedience of the order for payment of the expenses of the litigation it can hardly be said that there will be failure of justice unless there is a positive finding to the effect that because the expenses are not paid the other side will be debarred from defending the matrimonial cause. Mr. Vyas contends that the order can be supported on the ground that it is necessary to be used to prevent the abuse of the process of the Court. Now what petitioner has done is not to pay the amount of maintenance and the expenses of the suit. I will discuss in a moment whether there has been any allegation or proof that the behaviour of petitioner is contumacious. But even if it is so it is difficult to say that by non-compliance with the order of the Court petitioner is abusing the process of the Court. In fact these two allegations-the ends of justice and prevention of the abuse of the process of the Court-have not been made by opponent in her application nor is there any proof in support thereof. In my judgment the impugned order passed by the learned Civil Judge cannot be justified under Section 151 of the Civil Procedure Code.
7. Then Mr. Vyas relies upon the judgment of Mr. Justice Gokhale - already referred to in another connection in Prithviraisinhji Mansinghji v. Bai Shivprabhakumari and Anr. reported in A.I.R. 1960 Bombay 315 at page 318. In that case the learned Judge observes that normally the Court in the exercise of its matrimonial jurisdiction cannot order that the defence of a party should be struck off for failure to pay maintenance unless the refusal is contumacious. Mr. Vyas contention is that finding has been recorded by the learned Judge that the failure in the present case is contumacious. Therefore his submission is that the present case falls directly within the purview of the aforesaid decision. In my judgment the observation made by the learned Judge in the aforesaid case is obiter. In that case an anticipatory order for striking off the defence was made the order stating that in case the ordered amounts were not paid by the petitioner therein on or before 15th June, 1959 his defence was to be struck off. As the learned Civil Judge who had made the order could not have anticipated on the date on which the order was made whether the disobedience would be willful or failure to pay would be contumacious Mr. Justice Gokhale held that the impugned order could not be supported on the ground that the failure to pay was contumacious. The aforesaid observation of the learned Judge is based on the decision of Mr. Justice Marten reported in W. Codd v. B.E. Codd 25 Bombay L.R. 339-A.I.R. 1924 Bombay 132. In my Judgment that decision does not support the observation made by Mr. Justice Gokhale In that case Mr. Justice Marten made the following observations:
I had occasion in another case of Rodgar v. Rodgar to point out that as far as I can see the English authorities do not strike out a husbands petition or strike out his defence to his wife's petition merely because he has failed to give security. What they do as far as I can see and as far as counsels researches have so far been brought before me is to stay the husbands petition and as regards the wife's petition to proceed against the husband for contempt if he is proved to be able to pay but contumaciously refuses to do so.
Now in the first instance it is important to notice that the learned Judge has not made any observation to the effect that the defence of the husband is struck off in case of his failure to make a payment. All that he states is that in the latter contingency the English practice is to proceed against the husband for contempt if the refusal to make the payment is contumacious. Apart from this it is important to notice that the aforesaid observations were made by the learned Judge in a divorce petition arising under the Indian Divorce Act. The English practice can be applied to a proceeding under the Act in view of Section 7 thereof which imports English law and practice in proceedings under the Indian Divorce Act. There is no such statutory provision in the Hindu Marriage Act. Not only this, but as the title of the Act shows it is enacted to codify the law relating to marriage amongst Hindus. Having regard to the fact that the aforesaid observations were made by a Judge who had considerable experience of the English practice one may accept his observations as to what the English practice was but I am not at all satisfied that the aforesaid principle should necessarily apply to a proceeding under the Act. However it is not necessary for me to express a definite opinion on the subject as to whether the English practice should or should not be followed in such cases. It is noteworthy that even in English practice a vital distinction is made in matrimonial proceedings between contumacious behaviour of a petitioner and that of an opponent. In the case of a petitioner guilty of contumacious behaviour his petition is not dismissed. It is only stayed. All that the Court does is to stay the proceedings until the petitioner makes payment. It is obvious that in passing such an order no injustice is likely to occur and the injustice if any is not irretrievable and permanent. But it is quite obvious that if the defence of an opponent is struck off in some cases if not in all failure of justice is likely to result. Therefore the English practice is not to strike off the defence of an opponent. The English practice is only to proceed against the opponent for contempt of Court and that too as observed by Marten J. when the refusal to obey the order of the Court is contumacious. Therefore if the English practice is to be resorted to all that can be done is to proceed against the opponent in a matrimonial cause for contempt of Court and if found guilty to punish him for such contempt. It is not argued before me that the learned Civil Judge has any power for punishing the petitioner for contempt. But even assuming that after the petitioner has been found to be in contempt the Court has the power to strike off his defence it is quite obvious that the exercise of such power is a step which follows a finding of contempt. In my judgment the step must not be taken as a matter of course but only by way of a pis aller.
8. Mr. Vyas however strongly relies upon two English and one Indian authorities in support of his proposition that the defence of an opponent in a matrimonial cause can be struck off. The first English case is of Leavis v. Leavis reported in 1921 All England Reports 266 In that case the husband took out a summons under Rule 176 of the Matrimonial Causes Rules 1865 to stay his wife's proceedings for restitution of conjugal rights on the ground that he was willing to return to cohabitation. Thereupon wife's counsel took a preliminary objection that the husband was in contempt inasmuch as he had failed to comply with orders for payment of taxed costs for furnishing security for the costs of the trial and for alimony pendente lite. Hill J. held that it was discretionary with the Court under the circumstances whether the summons of the husband should be heard and that it was material to the exercise of that discretion to consider whether his failure to comply with the Courts orders was in fact due to his fault or to his misfortune. It will be noticed that these observations were made by the learned Judge in connection with the motion of the husband for staying the proceedings for restitution of conjugal rights. For all practical purposes the husband was a petitioner in the subsidiary proceeding in so far as he prayed for the stay of the main proceedings and the case was more analogous to a case for stay of the principal proceedings initiated by the husband on the ground that the latter had failed to comply with an order for maintenance or for payment of costs. In some cases this decision has been construed as laying down the rule that the defence of a husband can be struck off on the ground aforesaid. But even then it is important to notice that the rule which is laid down here is not one which follows as a matter of course on proof of nonpayment of maintenance pendente lite or non-payment of costs of litigation According to Hill J. one of the material facts to be ascertained in such cases is to find out whether the non-payment was due to the husbands fault or his misfortune. The second English decision is one reported in Hadkinson v. Hadkinson reported in 1952 All England Reports 567. In this case a decree nisi was granted in a petition by a wife for dissolution of her marriage. By that decree it was directed that the child should remain in the custody of her mother but that the child should not be removed outside the jurisdiction without the sanction of the Court. The decree for dissolution of marriage was made absolute. The mother remarried thereafter and without the sanction of the Court removed the child outside the jurisdiction of the Court Thereafter on a summons by the father ordering the mother to return the child within the jurisdiction the mother preferred an appeal. The father contended that she should not be heard because she had committed contempt of Court. The Court held that she should not be heard in appeal. The matter was put by the Court on the well-known principle that a Court should refuse to hear a person in contempt until he has purged himself of it. The following observations made by Denning L.J. are both interesting and instructive:
The Court would only refuse to hear a party to a cause when the contempt impeded the course of justice by making it more difficult for the Court to ascertain the truth or to enforce its order and there was no other effective means of securing his compliance. The Court might then in its discretion refuse to hear him until the impediment was removed or good reason was shown why it should not be removed The Indian case is the one reported in Mahalingam Pillai v. Amsavalli (1956) II Madras Law Journal 289. In this case the learned Judge of the Madras High Court had made an order granting alimony pendente lite and for paying expenses for defending the litigation. The husband failed to make the payments. The contention which was urged was that the husband should not be heard in appeal. Ramaswami J. examined the provisions of a number of statutes and the principles underlying a number of decisions and came to the following conclusion:Bearing these principles in mind if we examine the facts of this case we find that the order of Basheer Ahmed Sayeed J. directing the husband to pay alimony pendente lite has been contumaciously disobeyed. On account of the fact however, that this payment has not been made a condition precedent for the hearing of the appeal the appeal cannot be straightway dismissed and an opportunity should be given to the husband either to pay up or in the alternative the appeal would stand dismissed by a fixed date after the expiry of a reasonable time given to him to comply with the order.
The view which appears to have been taken in this case is that an appeal can be dismissed straightway on the ground of disobedience of an order for payment made by the Court provided the payment be made a condition precedent for the hearing of the appeal. It is not necessary for me to express any opinion in the present case regarding the validity of the principle except that I may only point out with great respect that a directly opposite view has been taken by Gokhale J. in Prithvirajsinhji Mansinghji v. Bai Shivprabhakumari and Anr. A.I.R. 1960 Bombay 315 already referred to But the observations on which Mr. Vyas strongly relies are those wherein the learned Judge says that and an opportunity should be given to the husband either to pay up or in the alternative the appeal would be dismissed. It will be noticed that in that case there would be no striking off the defence. The position of the husband in appeal was the same as the position of a petitioner in a matrimonial proceeding. However with great respect I may point out that none of the cases or the provisions of law discussed by the learned Judge justifies this course of action. Even the English cases have not gone to the aforesaid extent. As pointed out by Marten J. in W. Codd v. B.E. Codd A.I.R. 1924 Bombay 132 the English practice is only to stay the petition of the husband. Under the circumstances for the aforesaid reasons I am unable to agree with the broad proposition enunciated by Mr. Vyas that if the non-payment of the alimony pendente lite and or expenses of litigation arises out of contumacious disobedience of the order of the Court, the defence of the spouse who is in contempt in the matrimonial proceeding must be struck off. In my judgment there is nothing in the Act or the rules made under the Act or in the Civil Procedure Code which justifies such a broad proposition. The only section of the Civil Procedure Code which can be resorted to is Section 151 Civil Procedure Code but the aforesaid drastic step can be taken only in the ends of justice or to prevent the abuse of the process of the Court. I have great doubts whether the principles on which the English Courts act in matrimonial proceedings could be applied to proceedings taken under the Act. But even if it be assumed that this can be done I am not at all satisfied that the English practice is as contended for by Mr. Vyas that the defence of the husband must be struck off under the above circumstances. So far as the Bombay High Court is concerned the only observation which is relevant on the subject is the one made by Marten J. in W. Codd v. B.E. Codd A.I.R 1924 Bombay 132 in which all that the learned Judge has stated is that the husbands petition should be stayed in case he exhibits contumacious behaviour in relation to an order for payment of maintenance or expenses of litigation. But even assuming that the English practice is as contended for by Mr. Vyas the following observations of the Calcutta High Court made in Tara Singh v. Jaipal Singh I.L.R. (1946) I Calcutta 604 are very pertinent and with great respect I entirely agree with those observations:
Speaking for myself is would hesitate to apply the principles laid down in that case to the one with which we are now dealing in which the respondent is not himself applying to the Court for any form of relief, but is merely seeking to oppose his wife's petition for divorce. Moreover he has not been called upon to show cause why he should not be committed for contempt. If that had been done he might conceivably have a good defence in such proceedings.
These observations were made by the learned Judge in connection with the principle enunciated in the case of Leavis v. Leavis already noticed. In my judgment whether a defence in a matrimonial proceeding should or should not be struck off demands serious consideration. A matrimonial proceeding is not merely a proceeding between the two spouses but has its repercussions upon the welfare of the children and the structure of the society as well. It is not a proceeding merely in which the rights of the parties are determined and in which the Court is called upon to decide only and strictly on the materials which the parties may choose to place before the Court. Under Section 23 of the Act a duty has been cast upon the Court inter alia to satisfy itself that there is no collusion delay or connivance or condonation on the part of one or the other spouse in the matrimonial dispute. It is true that if the respondent in a matrimonial proceeding does not appear the Court is entitled to proceed exparte and that no officer like the Queens Proctor is appointed in India to protect the interests of the society. But all the same if the other spouse does appear to contest a matrimonial proceeding and if the result of the striking off of the defence is to deprive the Court of such assistance as it may derive for the purpose of discharging the duties cast on the Court then the Court will have to adjust the conflicting interests of the society and the individual interests of the aggrieved spouse in such a manner that the Court will not be deprived of any such assistance though the spouse has disobeyed an order of the Court. In my judgment even if the Court has the power as contended for by Mr. Vyas it will be in very extreme and rare cases that the power will be exercised and certainly not only on the simple ground that there has been a failure to make the payments ordered by the Court.
9. In the light of the aforesaid principles and observations in my judgment there is no doubt whatsoever that the impugned order was incorrectly made without appreciating the full implications of the law on the subject. Mr. Vyas places a great deal of reliance upon the finding of the Court that the behaviour of the petitioner was contumacious. But in my judgment that finding was recorded without affording an opportunity to the petitioner to meet the allegation. Moreover in my judgment the learned Judge was never called upon by the opponent to record any such finding. The application of the opponent does not allege that the behaviour of the petitioner was contumacious. The application is entirely grounded on the allegation that the husband had failed to comply with the order of the Court for making the payments. The learned Judge has stated in his order that the behaviour was contumacious on the ground that the husband was receiving a certain amount of income every month. But it is one thing to say that the husband is receiving a certain amount of income and another to draw the inference that the non-payment was the result of contumacious behaviour. In my judgment in the present proceedings not only there is no proper proof on the aforesaid subject not only that the petitioner is not given an opportunity to meet all the allegations but there is not even any allegation by the opponent which will bring the case within the purview of the aforesaid English principle on which Mr. Vyas relies. Therefore in my judgment this is a clear case wherein the learned Judge has acted with material irregularity which has led to failure of justice inasmuch as the result of the impugned order will be that the petitioner will be deprived of his right to defend the suit against him for judicial separation.
For the aforesaid reasons in my judgment the petition deserves to be allowed. Rule made absolute. There will be no order as to costs.