J.M. Sheth, J.
1. This Revision Petition is filed by the original respondent-wife against the opponent-husband against the order passed by the learned district judge, Rajkot, in civil Appeal No. 61 of 1973, below application, ex. 19, dismissing the application filed by the petitioner-wife, stating that the interim alimony awarded comes to Rs. 650/-for the period between 1-8-1973 and 31-8-1974 and Rs. 150/-for the appeal costs. The total amount thus awarded under Section 24 of the Hindu Marriage Act, 1955, comes to Rs. 800/-. Opponent-husband, who was appellant in the District Court in Civil Appeal No. 61 of 1973, has not paid anything. So, he may be directed to pay that amount and till that amount is not paid, the hearing of his appeal should be stayed.
2. The learned District Judge has dismissed this application on the ground that it will not be in the interest of the petitioners-wife to stay the hearing of the appeal filed by the husband against the decree of restitution of conjugal rights passed in favour of the petitioner-wife by the trial court. The learned district judge has distinguished the cases cited by the petitioner-wife before him on the ground, that in those cases, person who had come to the court was the husband and staying of the proceedings was, therefore, against his interest and consequently, by staying of the proceedings, he could be compelled to pay such amounts regarding interimalimony and deposit the costs required by the opposite spouse for defending the proceedings.
3. Mr. Suresh M. Shah, appearing for the petitioner, has urged that the learned district judge has committed an error in not staying the hearing of the appeal till the opponent-husband pays the aforesaid amounts. In support of his submission, he has invited my attention to several decisions.
4. In Prahladbhai Sataramdas v. Ashabaitrikamji 5 Gujarat Law Reporter 417, Miabhoy, J. (as he then was), at page 429, has referred to the decision of the Bombay High Court in W. Codd v. B.B. Codd A.I.R. 1924 Bombay 132. The observations made therein are:
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.B. Codd. A.I.R 1924 Bombay. 12, 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 expense 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) 1 Calcutta 604 are very pertinent and, with great respect, I entirely agree with those observations:
Speaking for myself I 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 wifes petition for divorce. Moreover, he has not been called upon to show cause why he should not be committed for the 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. (1921) all England reports 266, 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.
It is, therefore, evident that in this decision, justice miabhoy has held that for non-payment of such interim alimony or costs, defence cannot be struck off. He has also observed that the only section of the civil procedure code which can be resorted to, is Section 151, Civil Procedure Code. He has referred to several decisions, wherein the course adopted was, staying of the proceedings, exercising the inherent powers under Section 151 of the code of civil procedure.
5 in Manilal Magailal Mistry v. Jasumatiben I.L.R. 5 Gujarat 404, V G.L.R. 407 Bhagwati, J. (as he then was), has also taken a view, that for non-payment of such interim alimony and costs, the suit filed under Section 12 of the Hindu Marriage Act, 1955, by the husband against the wife for a declaration that the marriage was null and void, cannot be dismissed. He has not expressed his final opinion, as to whether such a proceeding can be stayed or not, using the inherent powers by the court under Section 151 of the code of civil procedure.
6. In M. Ramchandra Rao v. M.S. Kowsalya A.I.R. 1969 Mysore 76, a single Judge of the Mysore High Court has observed:
When the Civil Judge made a direction that the husband shall pay the arrears of maintenance, it was his highest duty to insist upon obedience to that direction if there was disobedience he had inherent power to stop further proceedings which were commenced by the husband. That was the view taken in Malkan Rani v. Krishan Kumar , Anita v. Birendra Chandra : AIR1962Cal88 and Bhuneshwar Prasad v. Droota Bai A.I.R. 1963 Madhya Pradesh 759, and with the enunciation made in these decisions I respectfully agree.
It is true that in that case, it was the husband who had filed the petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.
7. In Smt. Malkan Rani v. Krishan Kumar , a Division Bench of the Punjab High Court consisting of Bishan Narain and I.D. Dua, JJ., has observed:
Where in proceedings by the husband for restitution of conjugal rights, the court directs under Section 24 the husband to pay the wife maintenance pendente lite and the litigation expenses, the court has inherent power to stay the proceedings till the husband paid the amount which he has been ordered to pay under Section 24. The enforcement of the order otherwise than by execution is not prohibited or excluded by Section 28.
Section 24 empowers the matrimonial court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. The object and purpose of this provision is to enable the court to see that the indigent spouse is put in a financial condition in which the party concerned may produce proper material and evidence in the case and that a party is not handicapped in or prevented from bringing all, the relevant facts before the court for decision of the case because of his or her poverty. If these amounts are not made available to the applicant under Section 24 of the Hindu Marriage Act immediately, then its object and purpose will stand defeated. It will result in denial of the justice to the person in whose favour the order under Section 24 of the Hindu Marriage Act has been made.
The courts are not helpless in matter and can use their inherent jurisdiction to avoid such consequences.
Section 28 gives the right to a party to recover such an amount by taking execution proceedings but it does not affect the courts power to exercise its jurisdiction equitably and in such a way as to prevent abuse of its process.
8. In Smt. Anita Karmokar v. Birendra Chandra Karmokar : AIR1962Cal88 , Banerjee, J., after referring to Section 21 of the Hindu Marriage Act, 1955, observes:
Proceedings under the Hindu Marriage Act, 1955 are to regulated, as far as may the code of civil procedure. Every court must, in the absence of express provision in the civil procedure code, be deemed to possess, as inherent in its constitution, all such powers as may be necessary to do the right and to undo the wrong. Such powers include the power to stay further proceedings in a suit pending before it or to stay other suit, over which it has jurisdiction to stay, pending disposal of particular suit.
It is further observed:
The path of execution is not an easy going high way and provides no short-cuts to the destination. To relegate the wife in a matrimonial suit in whose favour maintenance and expenses pendente lite have been ordered to be paid by her husband to that difficult and risky pathway, even for realisation of the litigation experses, without staying the hearing of the matrimonial suit, may result in the suit itself being heard out before the expenses may be realised by process of execution. Therefore, to hold that the levying of execution is the only remedy for enforcement of an order made under Section 24 may result in making such order wholly nugatory and ineffective.
It is further observed:
The object of Section 24 of the, Hindu Marriage Act is to enable an indigent spouse, who has no independent means or income of her own, to conduct her defence without being handicapped in any way by poverty. A husband on whom an order under scq. 24 has been made, but who refuses to pay under the order and aspires yet to go on with his suit (in this case, restitution of his conjugal rights) must not be encouraged. The English principle, followed in matrimonial causes, of staying the suit in such circu nstances is the best way of dealing with such a situation and the said principle should be applied in proceedings under the Hindu Marriage Act, 1955, as a rule of justice, equity and good conscience.
There is nothing in the scheme of the Hindu Marriage Act which is opposed to the staying of a matrimonial Action, for example, for non-compliance with an order made under Section 24 of the Act, in exercise of the inherent power of the Court.
9. In my opinion, these decisions lay down the correct principle and there is nothing in any of the two decisions of this court, referred to, by me earlier, which in any way militates against the view taken by different High Courts in the aforesaid decisions. I am in respectful agreement with the view taken by those different High Courts. Similar view has been taken by a single judge of Madhya Pradesh High Court in Bhuneshwar Prasad v. Droota Bai : AIR1963MP259 . I, therefore, feel no hesitation in reaching the conclusion that the court in such a matrimonial proceeding under the Hindu Marriage Act, 1955, can, in exercise of its inherent power under Section 151 of the code of civil procedure, order the stay of the proceeding.
10. It is true, that in the instant case, proceedings for restitution of conjugal rights were taken not by the husband-opponent, but by the petitioner-wife and she succeeded in the trial court and it is against that decree, that the husband has filed appeal. That is the reason why the learned district judge has found it not desirable to order the stay of the hearing of the appeal, observing that it will not be in the interest of the wife. Husband may be interested in delaying the proceedings and such an order will give him a handle for the same. In my opinion, courts will not be helpless in such a situation also. There is already a decree for restitution of conjugal rights in favour of the petitioner-wife. She can execute the decree. If the appellant-opponent move the court for staying the execution of such decree, he can be put to terms and be first asked to pay up all these amounts. Courts will have, when such questions arise, to consider the relevant provisions of order 41, rules 5 and 6 of the code of civil procedure. Suffice it to say at this stage, that courts will not be quite helpless as has been apprehended by the learned district judge. I, therefore, find that it is a fit case for staying of the hearing of the appeal till the opponent, who is the appellant in the appeal before the District Court, pays the amounts claimed by the petitioner-wife (respondent in that appeal) in her application, ex. 19. The order, is passed accordingly allowing the revision petition and setting aside the order passed by the learned district judge, dated 23-9-1974, below application, ex. 19. Opponent is directed to pax the costs of the petitioner in this revision petition. Rule is made absolute.