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P.P. Krishnan Vs. J. Thailambal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1969)1MLJ328
AppellantP.P. Krishnan
RespondentJ. Thailambal
Cases ReferredIn Bhunohwar Prasad v. Dropata Bai A.I.R.
Excerpt:
.....of the court made in the exercise of its original civil jurisdiction are enforced, and maybe appealed from under any law for the time being in force; section 28 further enacts that the order passed under 24 can be enforced in like manner as a decree and order of the court made in the exercise of the original jurisdiction. 10. the object underlying section 24 would also be defeated if the order under section 24 were to lose its efficacy on the husband choosing to withdraw from the petition of his own choice. the special marriage act, 1954 in section 39, the hindu marriage act in section 28 and the madras act vi of 1949 in section 5, provide that all orders made by the court shall be enforced in the like manner as the decrees and orders of court made in the exercise of the original..........wife filed an application, la. no. 31 of 1959, on 2 3rd june, 1959 under section 24 of the act for interim maintenance and expenses of the proceeding. actually even before o.p. no. 39 of 1958 was filed, she had filed m.p. no. 324 of 1958 on 23rd august, 1958 under section 488, criminal procedure code, before the sub-divisional magistrate of usilampatti. after filing o.p. no. 39 of 1958, the husband moved for a stay of the enquiry into that petition pending disposal of o.p. no. 39 of 1958. this application was rejected by the learned magistrate. he filed a criminal revision case no. 167 of 1959 in this court against that order. this court granted stay of m.p. no. 324 of 1958 and allowed the wife to file an application for maintenance in o.p. no. 39 of 1958. it was thereafter that the wife.....
Judgment:

K.S. Venkataraman, J.

1. The facts giving rise to this appeal are these : The appellant Krishnan, and the respondent, Thailambal, were duly married according to Hindu rites. But, unfortunately, differences arose latterly. On 8th December, 1958, the husband filed O.P. No. 39 of 1958 (Sub-Court, Dindigul) under Section 12 of the Hindu Marriage Act, 1955 for declaring the marriage a nullity on the ground of alleged impotency of the respondent. During the pendency of the above petition the wife filed an application, LA. No. 31 of 1959, on 2 3rd June, 1959 under Section 24 of the Act for interim maintenance and expenses of the proceeding. Actually even before O.P. No. 39 of 1958 was filed, she had filed M.P. No. 324 of 1958 on 23rd August, 1958 under Section 488, Criminal Procedure Code, before the Sub-Divisional Magistrate of Usilampatti. After filing O.P. No. 39 of 1958, the husband moved for a stay of the enquiry into that petition pending disposal of O.P. No. 39 of 1958. This application was rejected by the learned Magistrate. He filed a Criminal Revision Case No. 167 of 1959 in this Court against that order. This Court granted stay of M.P. No. 324 of 1958 and allowed the wife to file an application for maintenance in O.P. No. 39 of 1958. It was thereafter that the wife filed I.A. No. 31 of 1959.

2. On 18th February, 1960, the trial Court i.e., the learned Subordinate Judge, made an order in I.A. No. 31 of 1959 directing the appellant herein to pay Rs. 50 per month for maintenance from the date of the petition and Rs. 250 towards expenses of the proceedings--as a condition precedent for the trial of the main petition, O.P. No. 39 of 1958. The husband carried the matter in appeal in C.M.A. No. 13 of 1959 to the learned District Judge. The learned District Judge reduced the amount for the expenses to Rs. 200 and otherwise confirmed the order of the learned Subordinate Judge. The above order was passed on 26th October, 1960. Thereafter on 24th November, 1960, the husband made an endorsement in. O.P. No. 39 of 1958 that he did not have the means to comply with the order for payment of maintenance and the expenses and that he was not pressing the original petition. The original petition was dismissed on 29th November, 1960.

3. M.P. No. 324 of 1958 was renumbered as M.C. No. 1 of 1959 and came on for enquiry before the Magistrate. On 9th March, 1961, the parties entered into a compromise by which the husband agreed to pay at Rs. 32 per month from 9th March, 1961, the first of such payment being payable on 10th April, 1961. The husband says that he has been paying the amount ever since.

4. The wife filed E.A. No. 237 of 1962 in O.P. No. 39 of 1958 on the file of the executing Court (Sub-Court, Dindigul) for recovery of a sum of Rs. 1,077-26 and for transferring the decree for execution to the Sub-Court at Ootacamund, where the appellant was employed. This amount was made up of Rs. 831-66, the maintenance ordered in I .A. No; 31 of 1959 and confirmed in C.M.A; No. 13 of 1960 for the period 23rd June, 1959 to 24th November, 1960. Secondly, it included a sum of Rs. 200 being the expenses as ordered in C.M.A. No. 13 of 1960. The remainder represented the costs of the execution.

5. The husband resisted E.A. No. 237 of 1962 on the grounds--one, that the order passed on 18th February, 1960 in I.A. No. 31 of 1959 and confirmed with modification in C.M.A. No. 13 of 1960 was not executable and ceased to have effect when the appellant made the endorsement on 24th November, 1960, that he was not pressing the O.P. and as a result the O.P. itself was dismissed. The contention is that the order was only meant as a condition precedent to the appellant having the benefit of proceeding with the trial of O.P. No. 39 of 1958 and that when he did not choose to proceed with that matter, the order had no other efficacy. The second objection was that even if the above contention was not accepted, the parties, by entering into an arrangement or compromise on 9th March, 1961 in M.C. No. 1 of 1959 intended to abrogate the order for interim maintenance and expenses passed in I.A. No. 31 of 1959 and confirmed in C.M.A. No. 13 of 1960 with modification.

6. These contentions were rejected by the executing Court and, on appeal, by the learned District Judge. Hence this further appeal by the husband. In the appeal, the same two objections are repeated by the appellant's Counsel Sri A. Sundaram Iyer.

7. Section 24 of the Act reads:

Where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it 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 as, having regard to the petitioner's own income and the income of the respondent, it may seem to the Court to be reasonable.

8. Section 28 of the Act says:

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 maybe appealed from under any law for the time being in force; Provided that there shall be no appeal on the subject of costs only.

9. The terms of Section 24 under which the order sought to be executed was passed, contain no limitation that the order will cease to have force if the husband against whom the order is passed chooses to withdraw the main petition. Section 28 further enacts that the order passed under 24 can be enforced in like manner as a decree and order of the Court made in the exercise of the original jurisdiction. In other words, it could be executed in the manner sought by the respondent. Section 28 therefore reinforces the view that the order passed for interim maintenance and expenses under Section 24 could be enforced, notwithstanding the fact that the husband chooses to withdraw from the application.

10. The object underlying Section 24 would also be defeated if the order under Section 24 were to lose its efficacy on the husband choosing to withdraw from the petition of his own choice. The object underlying Section 24 is to provide the wife with interim maintenance during the pendency of the proceeding and also with the necessary expenses for defending the proceedings. When the husband chooses to drag the wife to the Court by filing a proceeding and if it is shown that the wife has no independent income the husband must necessarily provide her with interim maintenance and the necessary expenses and he cannot be allowed to wipe out this liability after the order is passed by choosing to withdraw from the petition. His being allowed to do so would only amount to harrassment of the wife, for the expenses might have already been incurred by the wife. It may be noted further that Section 24, as it is worded, applies not merely to the respondent in the main petition but could also be invoked by the petitioner in the main petition itself, whether it be the wife or the husband. It means that an indigent wife can bring a proceeding under the Act and claim interim maintenance and expenses from the husband if the husband is able to make provision thereof. Conversely, an indigent husband can bring proceeding against the wife and get interim maintenance and expenses from the more prosperous wife. When the provision is of such a far reaching character, it would defeat the purpose of the provision if the Court were to hold that the benefit of the section is to depend on the caprice of the petitioner in not choosing to proceed with his petition.

11. The order under Section 24 of the Act, will, no doubt, be current only during the pendency of the proceeding before the trial Court, but its efficacy cannot be otherwise destroyed on the ground that the main petition has been withdrawn by the petitioner.

12. There appears to be no decision so far, either way, on the question now under consideration, but the cases which have been brought to my notice contain observations which support the view which I have taken. In Mahalingam Pillai v. Ambavalli (1966) 2 M.L.J. 289, Ramaswami, J., with his characteristic thoroughness, if I may say so with respect, has exhaustively dealt with the case-law on the several aspect of the provisions of the Act; point (2) discussed by him related to alimony, interim alimony during the pendency of the proceeding and permanent alimony. At page 299 the learned Judge observes:

The Special Marriage Act, 1954 in Section 39, the Hindu Marriage Act in Section 28 and the Madras Act VI of 1949 in Section 5, provide that all orders made by the Court shall be enforced in the like manner as the decrees and orders of Court made in the exercise of the original civil jurisdiction are enforced and may be appealed from under the law for the time being in force.

13. The learned Judge further observes that Section 28 of the Hindu Marriage Act, 1955, provides for execution of the orders of the Court and therefore orders granting alimony pendente lite could not only be executed by the wife, but when these payment are made condition precedent for the taking up of the trial of the petition and these orders are not complied with, the petition can be dismissed. In that case an order for interim maintenance had been passed in appeal by this Court but had been contumaciously disobeyed by the husband. It was however not made a condition precedent for the hearing of the appeal. Hence the learned Judge directed that an opportunity should be given to the husband to pay up the arrears, or in the alternative the appeal would be dismissed.

14. In Malkan Rani v. Krishna Kumar , a Bench of the Punjab High Court held that Section 28 of the Act would not prevent the Court from exercising its inherent power and staying the trial of the main petition if the order for interim maintenance and expenses is not obeyed. It was recognised that Section 28 enables the party to recover the amount by taking execution proceedings.

15. In Mst. Mukan Kanwar v. Ajitchand I.L.R. (1960) Raj. 1500 : A.I.R. 1961 Raj, it was merely held that the order passed under Section 24 of the Act would have currency only during the proceeding in the trial Court and would not have effect in the appellate Court, but that the appellate Court should pass a fresh order under Section 24 of the Act in view of Section 107, Civil Procedure Code, (made applicable under Section 21 of the Act). In Dr. Tarlochan Singh v. Mohinder Kaur I.L.R. (1963) 1 Punj. 74 : A.I.R. Punj. 249, the same point was decided and in the course of the judgment, the learned Judge, Dua, J., points out that the order passed by the trial Court could be executed under Section 28 of the Act and he relies on the Bench decision in Malkan Rani v. Krishan Kumar . In Bhunohwar Prasad v. Dropata Bai A.I.R. 1963 Madh. Pra. 259, it was recognised that the order under Section 24 of the Act could be enforced in execution under Section 28 and further it was held that in addition the trial Court could stay the trial if the amount was not paid.

16. On behalf of the appellant, the decision of Veeraswami, J., in Doraiswami v.. Govindaswami A.I.R. 1963 Mad. 207, was cited. But that is not relevant for the point under discussion. In that case, interim stay of execution of a decree for possession was granted on certain terms. The terms were not complied with in full. Consequently, possession was taken. It was held that when the terms were not complied with, the interim stay ceased to have its force. There the interim stay ceased to have force : because of its own terms and there was already the decree in favour of the respondent entitling the respondent to take possession. Here in the instant case the order passed under Section 24 of the Hindu Marriage Act does not contain any such limitation as an interim order of stay.

17. Chaudhari's Commentary of the Hindu Marriage Act, 1955 (1957 Edn.) under Section 24 (note 11 at page 323) and Saxana's Commentary, 3rd Edition, under Section 24 (note 3 at page 370) are also to the effect that the order under Section 24. of the Act could be enforced in execution by virtue of Section 21 of the Act.

18. I therefore repel the first contention of Sri Sundaram Iyer that the order was not executable and ceased to have effect when the appellant withdrew the petition and the original petition was dismissed.

19. The second objection has no substance either. Indeed, the intention of the parties must have been that the wife must have the benefit of the order already passed in I.A. No. 31 of 1959, because, otherwise it is un-understandable that having filed the petition for maintenance, on 23rd October, 1968 itself, she agreed to give up all the benefit of the order she had secured in I.A. No. 31 of 1959 and was content to receive maintenance at the rate of Rs. 32 per month only from 9th March, 1961. The appeal may justly be characterised as frivolous and it is accordingly dismissed with costs.


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