Skip to content


Sm. Anita Karmokar and anr. Vs. Birendra Chandra Karmokar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 747 of 1961
Judge
Reported inAIR1962Cal88,65CWN786
ActsHindu Marriage Act, 1955 - Sections 21, 24, 25, 26 and 28; ;Code of Civil Procedure (CPC) - Section 151
AppellantSm. Anita Karmokar and anr.
RespondentBirendra Chandra Karmokar
Appellant AdvocateAmrendra Mohan Mitra and ;Arunendra Nath Basu, Advs.
Respondent AdvocateBhabesh Chandra Mitter, Adv.
Cases ReferredMalkan Rani v. Krishan Kumar and
Excerpt:
- .....therefore, arises, whether this court is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. section 151 of the code does not lay down any new principle, but merely declares that the court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. the existence of this inherent power to do justice has been recognised from the earliest times, hurro chunder v. sooradhonee, debia, 9 suth wr 402, and has been repeatedly affirmed: panchanan v. dwarkanath, 3 cal lj 29 and hukum chand v. kamalanand, ilr 33 cal. 927. this inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised, it is exercised ex debito justitiae, to do that real and.....
Judgment:

B.N. Banerjee, J.

1. In May, 1960, Birendra Chandra Karmokar, the opposite party, tiled an application, under Section 9 of the Hindu Marriage Act, 1955, (hereinafter referred to as the Act) for restitution of his conjugal rights with the petitioner No. 1 and Co-injunction against petitioner No. 2, the mother of petitioner No. 1, restraining her from interfering therewith or standing in the way thereof. The said application was registered as Matrimonial Suit No. 93 of

93 of 1960.

-------------

5 of 1960

2. The petitioners filed a Joint Written Statement objecting to the prayer for restitution of conjugal rights, inter alia, on the plea of cruelty, to the petitioner No. 1, by the opposite party and the members of his family.

3. On August 18, 1960, the petitioner No. 1 filed an application in. the aforesaid suit, underSection 24 of the Act, asking for maintenance pendente lite and expenses of the proceeding. The Court below, on being satisfied that the wife petitioner No. 1 had no independent income sufficient for her support and for defraying the necessary expenses of the proceeding, passed an order, dated December 17, 1960, directing the opposite party to pay to the petitioner No. 1, as maintenance p'endente lite, a sum' of Rs. 31/- per month, with effect from June, 1960 and a further sum of Rs. 200/- as expenses of the proceeding. The amounts aforementioned were directed to bepaid to the petitioner No. 1 by the end of January, 1961.

4. The opposite party did not pay the aforesaid sums of money to the petitioner No. 1 nor any part thereof.

5. Thereupon, on March 3, 1961, the petitioner No. 1 applied for stay of the matrimonial suit until payment. The Court below rejected the application with the following observations :--

'It appears that the respondent has engaged her lawyer to press the petition for stay, but she is not herself present. I think that she could have examined herself in defence. So I think that in this case the proceeding should not be stayed. So fix 11-3-61 for peremptory hearing. Respondent must be present on that day.

The petition for stay is rejected. Petitioner's advocate submits that his client will pay some amount on that day. Petitioner ig therefore, directed to pay the amount which the court has directed to pay for expenses of this litigation by the nextdate.'

6. There is no dispute now that the husband opposite party has not paid any sum of money to the wife petitioner No. 1.

7. Against the order rejecting the prayer for stay of the suit the petitioners moved this court, under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution, and obtained this Rule.

8. Two points call for my decision in this Rule, (i) whether the petitioner had a right of appeal against the order and (ii) whether the proceeding for restitution of conjugal rights shouldhave been stayed till the husband paid the amount, which he had been ordered to pay under Section 24 of the Act?

9. On the point of right of appeal, I need consider, in the first place, the provisions of Section 28 of the Act, which I set out below :--

''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 the 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.'

I need further consider the provisions of Section 21 of the Act, which is also set out below:--

'Subject to the other provisions contained inthis Act and to such rules as the High Court may make in this behalf, all proceedings under thisAct shall be regulated, as far as may be, by the Code of Civil Procedure, 1908, (Act V of 1908).'

10. I need also bear in mind Section 4(b) of the Act which provides:--

''any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

11. Under Section 28 of the Act all decrees and orders of a matrimonial court may be appealed from under any law for the time being in force. Under Section 21 of the Act, the law that is attracted to such appeals is the Civil Procedure Code. Under that Code, however, an order for payment of pendente lite maintenance and litigation expenses is not appealable; this will appear from Sections 104 and 105 and Order 43 of the Code. But then the provisions of the Act, under Section 4(b) of the Act, are to have over-riding effect.

12. The Court that was seized of the dispute was a 'District Court', as defined in Section 3(b) of the Act:--

''district court' means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;'.

13. The district court is thus an ordinary Court of this country, exercising the special jurisdiction under the Act. 'The true rule is that where a legal right is in dispute and the ordinary courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal' (vide Adaikappa Chettier v. Chandrasekhara Thevar Per Lord Simonds). But for the wording of Section 28 of the Act, no doubt would have arisen that the order, that I have to deal with in this Rule, was not appealable under the rules of procedure as in the Civil Procedure Code. On the wording of Section 28 of the Act, however, it may be contended (i) that all orders made by a matrimonial Court in any proceeding under the Act may be appealed front under the procedure as in the Civil Procedure Code, or (ii) that all orders made by a matrimonial Court in any proceeding under the Act, if of the type of orders from which appeals are provided under Sections 104 and 105 or Order 43 of the Civil Procedure Code may be appealed from according to the procedure in that Code. The first type of interpretation may be justified by a blind allegiance to the doctrine of literal interpretation of Statutes, although the same may result in even an order either granting or refusing adjournment of hearing being appealed against; the second type of interpretation may be off hand criticised as reading into the Section words which do not appear in it.

14. Section 9, dealing with restitution of conjugal rights. Section 10 dealing with judicial separation, Section 11, dealing with declaration of nullity of marriage for contravention of Section 5 Clauses (i), (iv) and (v), Section 12, dealing with annulment of voidable marriage and Section 13, dealing with divorce, use the expression 'decree' and there can be no dispute that an appeal will He against a decree passed under any of the aforesaid sections, Section 24, dealing with maintenance pendente lite and expenses of proceedings, Section 25, dealing with permanent alimony and maintenance, and Section 26, dealing with custody of children, use the expression 'order'. There may also be other orders passed in the course of a matrimonial suit or proceeding as under the Civil Procedure Code. The question is (i) whether Section 28 provides for appeals only against orders passed under Sections 24, 25 and 26, or (ii) whether all orders passed under the Civil Procedure Code, in course of a matrimonial suit or proceeding, are appealable under Section 28 of the Act, irrespective of whether they are otherwise appealable under the Civil Procedure Code?

15. The first question in my opinion should, however, be answered in the affirmative. In my reading of Section 28 of the Act, orders made under Sections 24, 25 and 26 of the Act are appealable orders and as against those orders appeals will lie to the forum provided for in Sections 20 and 21 of the Bengal Agra and Assam Civil Courts Act and the procedure for preferring such appeals will be governed by the Civil Procedure Code and other connected laws and rules of procedure in force (say, for example, the High Court Appellate Side Rules).

16. I read the expression 'orders' in Section 28 of the Act to mean orders passed under the Act, namely, orders contemplated by Sections 24, 25 and 26 of the Act. Orders which are not passed under the Act but are merely interlocutory or routine orders, passed under the Civil Procedure Code, are not and do not come within the language of Section 28 of the Act.

17. The enactment used the expression 'decree' in some of the sections and also used the expression 'order' in other sections. While making provision for appeal, the Legislature surely had those decrees and orders in mind and not any other order. That is the impression I gather reading the Act as a whole, although I confess that the language of Section 28 of the Act, read out of context of the Act, may not readily yield to the construction that I contemplate.

18. Nevertheless, if any, an alternative construction, although not the most obvious, will give a reasonable meaning to the Act and obviate the absurdities and inconveniences of an absolutely literal construction, a Court may deem itself free to adopt it (see Craies on Statute Law--5th Edition Part I Chapter I page 85).

19. By conceding a right of appeal against all sorts of interlocutory or routine orders, in a matrimonial suit, not made under the Act, but made under the Civil Procedure Code, the inconvenience and absurdity that may be imported may nullify the efficient, effective and expeditious administration of the law and may also introduce a sense of impotency in Courts trying matrimonial actions.

20. I do not question the wisdom of the Legislature in enacting Section 28 of the Act in the manner done. I have merely tried to construe Section 28 of the Act and, read in the context of the Act, I hold that by the expression 'orders', mentioned in Section 28, only orders made under the Act were meant by the Legislature and no other orders.

21. The order that I have to deal with in this Rule is not an order passed under the Act. It was an order made on an application, under Section 151 of the Code, for stay of further proceedings in a matrimonial action. An order rejecting such an application was not an order made under the Act and was not appealable under Section 28 of the Act. I, therefore, hold that this Revision case is maintainable.

22. I now turn to the question whether further proceedings in the suit should have been stayed for non-payment of pendente lite maintenance and litigation expenses. The Court below was of the view that it had jurisdiction to stay further proceedings in the suit, for non-payment of the money, which the husband opposite party had been directed to pay under Section 24 of the Act, but refused to exercise that jurisdiction for reasons hereinbefore quoted. It was contended before me that Section 28 of the Act provides a remedy for non-payment, namely, enforcement of the order in like manner as orders of Civil Courts are enforced, and inasmuch as the Act contains an express provision for enforcement of the order, no occasion arises for exercise of inherent power by the Court, under Section 151 of the Code.

23. In administering justice under the Code of Civil Procedure, Courts may come across cases and circumstances, which are not covered by any express provision of the Code, wherein also justice has to be done. The prescribed rules of procedure again may be abused or. so used as merely to emphasise on the form than on the substance and thus obstruct or make ineffective the administration of justice. In the aforementioned cases and circumstances, courts have undoubted power to do justice and to redress wrong, under Section 151 of the Code.

24. In this connection, I respectfully remind myself of the observation by Mahmood, J., in Narsingh Das v. Mangal Dubey, ILR 5 All 163 (FB) :

'Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle prohibitions cannot be presumed.'

25. Every Court must, therefore, in the absence of express provision in the 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 suits, over which it has jurisdiction to stay, pending disposal of particular suit.This proposition is now much too well established to require any authority, but even then I would quote an observation by Mookerjee, J. (Holmwood, J. sitting with him) in Nand Kishore Singh v. Ram Gulam Sahu, ILR 40 Cal. 955 :--

'The question, therefore, arises, whether this Court is competent, in the exercise of its inherent power, to stay proceedings under these circumstances. Section 151 of the Code does not lay down any new principle, but merely declares that the Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The existence of this inherent power to do justice has been recognised from the earliest times, Hurro Chunder v. Sooradhonee, Debia, 9 Suth WR 402, and has been repeatedly affirmed: Panchanan v. Dwarkanath, 3 Cal LJ 29 and Hukum Chand v. Kamalanand, ILR 33 Cal. 927. This inherent power is not, as has sometimes been supposed, capriciously or arbitrarily exercised, it is exercised ex debito justitiae, to do that real and substantial justice for the administration of which alone the court exists. Amongst obvious cases may be mentioned. postponement of the hearing of a suit pending the decision of a selected action, stay of cross suits on the ground of convenience, staying the drawing up of the Court's own order, suspending the operation of the Court's order, staying proceedings pending an appeal in a guardianship matter restraining by injunction a person from proceeding with a suit in the Small Cause Court, staying proceedings pursuant to its own order in view of an intended appeal.'

26. Bearing in mind the purpose and scope of Section 151 of the Code and the occasion for the exercise of Court's inherent power, I have now to see, (i) whether there is anything contained in Sections 24 and 28 of the Act which prohibits or discourages use of the Court's inherent power to stay further proceedings in a matrimonial action, for non-compliance of an order made under Section 24 of the Act and (ii) whether the circumstances of this case are such as might have required the Court to stay further proceedings in the matrimonial suit, for ends of justice.

27. It was strongly contended before me that the wife petitioner could enforce the order made under Section 24 of the Act only by way of execution of the order and that the husband opposite party could not be compelled to pay by ordering stay of the proceeding for restitution of his conjugal rights with the petitioner. The path of execution is not an easy going high way and provides no short-cuts to the destination. In the case of General Manager of Raj Durbhanga v. Ramput Singh, 14 Moo Ind App 605 (612) the Privy Council very rightly observed--'Difficulties of a litigant in India begin when he has obtained a decree.' To relegate one to that difficult and risky path-way, even for realisation of the litigation expenses, 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 underSection 24 may result in making such order wholly nugatory and ineffective.

28. Had this been a case under the Indian Divorce Act, to which the principles and rules, on which the Court for Divorce and Matrimonial Causes in England acts, are expressly made applicable, under Section 7 of the afore-mentioned Act, I would have been supported by good authorities in holding that courts have jurisdiction to stay further proceedings of a matrimonial cause for non-payment of pendente lite maintenance or litigation expenses.

29. In Rayden on Divorce (7th Edition) at 512 the following passage appears:-

'If a husband who has been ordered to pay alimony pending suit or costs to his wife neglects to do so, she may apply to have the petition dismissed, or to have the suit stayed.'

30. In Kemp-Welch v. Kemp-Welch, 1910 P. 233 Cozens Hardy M. R. held that there was jurisdiction in the Court to stay all further proceedings by the husband until the whole of wife's taxed costs had been paid or secured and security given for the wife's further costs of the retrial. His Lordship held that such an order was in strict accordance with the old practice of the Ecclesiastical Courts and his Lordship followed with approval an earlier decision on the point in Joseph v. Joseph, (1897) 76 LT 236.

31. Deciding a case under the Indian Divorce Act, Allsop, J. Observed in : AIR1941All93 , Yaqub Masih v. Christina Masih:-

'It is surely wrong that a wife should be exposed to a charge of adultery and run the risk of being deprived of the support of her husband without being able to place her case fairly before the Court. If the husband seeks relief, it is just that he should enable his wife to defend herself when she has no means to support her own caseI havebeen referred to the case in (1873) 3 P and D. 52, Keane v. Keane. There it was stated that it was thc practice of the Ecclesiastical Court not to fix a date for the hearing of a matrimonial petition until the husband had paid in the cost which he wag directed to pay on behalf of the wife. It seems to me that the petitioner in the case before me should be able to pay in a not very large sum of Rs. 50/- and I think it would be unjust to the wife to deprive her of the power of defending herself against allegations of adultery, I, therefore, direct that the case will stand out till costs are paid.'

32. In AIR 1924 Bom 132, Codd v. Codd, Marten, J. also held that the English procedure of staying the suit, when a husband contumaciously refuses to pay to the wife, should be followed in India.

33. I need not multiply precedents and authorities either under the English Law or under the Indian Divorce Act. The question for my consideration is whether the same principle, as set out above, should apply to the Hindu Marriage Act, 1955, to which, unlike the Indian Divorce Act, English rules of practice have not been expressly made applicable.

34. I do not find anything wrong in the absence of statutory provision in importing the English rules of practice, if they are rules of justice, equity and good conscience, if they fit in with Indian conditions and if they do not defeat the very purposes of the Act, for the administration of which those principles may have to be imported.

35. The object of Section 24 of the Act is obviously 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 Section 24 has been made, but who refuses to pay under the order and aspires yet to go on with his suit must not be encouraged. The English principle of staying the suit in such circumstances is the best way of dealing with such a situation and I am of the opinion that the said principle should be applied in proceedings under the Hindu Marriage Act, 1955 as rule of justice, equity and good conscience.

36. I have already stated what inconvenience may ensue if execution be held to be the only method of enforcement of an order made under Section 24 of the Act. I find 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. This is the view which was also taken in , Malkan Rani v. Krishan Kumar and I respectfully agree with that view.

37. The only question that now remains for my consideration is whether in the facts and circumstances of the instant case further proceedings, in the suit for restitution of conjugal rights should have stayed. I have hereinbefore set out the reasons why the Court below did not stay. None of those reasons appeals to me particularly the reason that wife petitioner was absent before the Court below. There was no dispute that the money, that the husband opposite party had been ordered to pay, was not paid. There was no necessity of any evidence orally being given by the wife petitioner for the purposes of the application for stay. Why then the court below made the absence of the wife petitioner a point against her passes my comprehension.

38. In the facts and circumstances of this case I am of the opinion that the suit for restitution of conjugal rights should have been stayed until the husband paid the sums of money that he had been ordered to pay. I direct that the same be ordered to be done now.

39. This Rule is. made absolute with costs, hearing fee assessed at two gold mohurs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //