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Jai Singh Vs. Smt. Khimi Bhiklu and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberF.A. No. 29 of 1973
Judge
Reported inAIR1979HP45
ActsHindu Marriage Act, 1955 - Sections 24 and 28A; ;Code of Civil Procedure (CPC) - Section 35B
AppellantJai Singh
RespondentSmt. Khimi Bhiklu and anr.
Appellant Advocate Inder Singh, Adv.
Respondent Advocate K.D. Sud, Amicus Curiae
DispositionAppeal dismissed
Cases ReferredSmt. Anuradha v. Santosh Nath Khanna
Excerpt:
- .....for 17-3-1973 and the rest of the amount may be recovered from me by the petitioner by taking out execution proceedings.'on this statement the first respondent smt. khimi made the following statement:'i have heard the statement of the respondent and accept his statement and undertake to produce all my evidence on 17-3-1973 in case the respondent pays me rs. 200 on 2-3-1973, as undertaken by him.'the parties having made the above quoted statements, the court passed the following order on the same date:'in view of the above statements of the parties, the case is now fixed for 17-3-1973 for the evidence of the petitioner. the petitioner is directed to file a list of witnesses, process fee and diet money for summoning her witnesses, in case the respondent pays her rs. 200 on 2-3-1973, as.....
Judgment:

T.U. Mehta, Actg. C.J.

1. This appeal is preferred by the appellant-husband against the order passed by the District Judge, Mandi granting an ex parte decree of judicial separation in favour of the first respondent Smt. Khimi who claims to be the wife of the appellant.

2. Facts of the case show that the first respondent Smt. Khimi filed a petition for judicial separation under the Hindu Marriage Act on the ground thather appellant husband has a second wife, who is in this case the respondent No. 2, and is treating her cruelly. It is found that during the pendency of the proceedings the first respondent made an application for interim alimony and costs under Section 24 of the Hindu Marriage Act. On that application the court passed an order on 8th August, 1972 for payment of monthly allowance and cost of the petition amounting to. Rs. 200. Proceedings taken before the trial court show that the appellant-husband thereafter failed in paying the amount of coot as ordered by the Court. Ultimately, on 27th Feb., 1973 the appellant husband made the following statement before the court:

'I have not been able to bring the money today, which I have promised to pay on the last date of hearing. Now I promise that I shall pay Rs. 200 on 2-3-1973 to the petitioner and on my so paying the amount, the petitioner should summon her evidence for 17-3-1973 and the rest of the amount may be recovered from me by the petitioner by taking out execution proceedings.'

On this statement the first respondent Smt. Khimi made the following statement:

'I have heard the statement of the respondent and accept his statement and undertake to produce all my evidence on 17-3-1973 in case the respondent pays me Rs. 200 on 2-3-1973, as undertaken by him.'

The parties having made the above quoted statements, the court passed the following order on the same date:

'In view of the above statements of the parties, the case is now fixed for 17-3-1973 for the evidence of the petitioner. The petitioner is directed to file a list of witnesses, process fee and diet money for summoning her witnesses, in case the respondent pays her Rs. 200 on 2-3-1973, as expenses of proceedings.'

3. The matter was thereafter taken up on 17-3-1973 when the appellant-husband appeared before the court and made the following statement:

'I had undertaken to pay Rs. 200 to the petitioner on or before 2-3-1973, which I have not paid so far, nor I am prepared to pay the same.'

The appellant husband thus having refused to carry out the promise of the payment of the cost of Rs. 200, the court passed the order on the same date i.e. 17-3-1973, striking out his defence,and ordering the case to proceed ex parte against the appellant-husband. Thereafter, the court recorded evidence ex parte and then passed the decree for judicial separation as requested by the respondent No. 1.

4. In this appeal the grievance which is made by the appellant-husband is that the learned Judge had no jurisdiction to proceed ex parte against him, and therefore, the eventual decree which is passed against him is liable to be set aside. Since this court found that the question involved is of some importance, the matter was referred to a Division Bench. This is how this matter has come before us.

5. The simple question which arises to be determined is whether in the set of circumstances which are found in this case it was open to the court to pass an order striking out the defence of the appellant and whether this order is conducive to the interest of justice.

6. Shri Indar Singh who appeared on behalf of the appellant contended that though under Section 24 of the Hindu Marriage Act the Court has powers to pass an interim order to pay alimony and expenses of the proceedings, there is nothing in the Act which would enable the court to pass an order - striking out the defence, in case the spouse ordered to pay the expenses and maintenance pendente lite has defaulted in doing so. In this connection he has also drawn our attention to Section 28 of the Act which says that 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. According to Shri Indar Singh, therefore, the remedy for the first respondent was to execute the order of the court awarding expenses pendente lite. He also drew our attention to the fact that the court could have enforced the order as regards payment of costs pendente lite even by starting contempt proceedings against the appellant. Therefore, in the submission of Shri Indar Singh, the court, instead of striking out the defence in a matrimonial proceeding should resort to any of the above alternative methods for the purposes of enforcing the order as regards payment of costs.

7. During the course of the arguments Shri Indar Singh relied on several decisions of various High Courts showing that in a fit case even matrimonial proceedings can be stayed if the spouse ordered to pay the cost or interim alimony has defaulted in doing so. Relying upon these decisions it was contended that in this particular case the court could have stayed the proceedings with a view to enable the respondent No. 1 to realise the amount of costs by executing the order passed earlier under Section 24 of the Act.

8. Before dealing with the different decisions which are cited at the Bar, we shall first consider what would be the appropriate method by which the court can enforce this order of interim alimony and expenses pendente lite in a case where the party ordered to pay these amounts deliberately fails to do so. We have referred at length, in the foregoing portion of this judgment, to the proceedings that have taken place before the learned trial Judge. These proceedings clearly show that the appellant-husband had, pursuant to the order passed by the court under Section 24 of the Act, twice promised to pay up the amount of the expenses pendente lite. It was on his promise that the matter was ultimately adjourned to 17-3-1973 when he came out with a statement that he was not at all prepared to pay up the amount in question. It was on his promise that the first respondent had called her evidence on 17-3-1973. These proceedings therefore make it abundantly clear that the appellant husband has deliberately and contumaciously flouted the court's order to pay up the amount of cost which would have enabled the first respondent to put up her case before the court.

9. It need not be emphasised that the purpose of Section 24 of the Act is to enable a financially weak party to litigate his or her rights in a matrimonial cause. Section 24 thus embodies in itself a very wholesome principle which is conducive to rule of law. It contemplates that none of the parties to a matrimonial cause should be able to take undue advantage of his financial superiority to defeat the rightful claims of the weaker party. It should also be noted that the proceedings contemplated by Section 24 are the proceedings pendente lite. Obviously, therefore, these proceedings have the limited purpose of enabling the weaker party to substantiate his or her rights during the pendency of the proceedings. It is underthese circumstances that the question which arises for our consideration should be appreciated so that the main purpose of the Legislature in enacting Section 24 of the Act would not be defeated.

10. It is true that Section 28 of the Act contemplates the enforcement of orders by execution. The question is whether this remedy for the purpose of enforcing the order of interim alimony and expenses passed by the court is a remedy which is so effective as to carry out the purpose of Section 24 as well as of the statute, namely, the Hindu Marriage Act, 1955. It need not be emphasised that enforcement of an order passed by the court under Section 28 by way of execution would necessarily entail a long and arduous process, and if it is held that the interim order passed by the court under Section 24 of the Act can be enforced only in that particular manner, that is, by execution, the matrimonial proceedings would be required to be stayed till the order is enforced in execution In other words, in order to obtain the en-forcement of the order passed under | Section 24 of the Act through the process of execution, the parties would be required to wait, in certain cases, till a number of years. The question is whether this particular procedure would enhance the object of the Act. Matrimonial proceedings by their very nature are expected to be expeditious because there would be absolutely no point in giving redress to a party in matrimonial proceedings after a number of years which would not stop the parties ageing. We need not dwell more on this point because the Act itself recognises under Section 21-B the necessity of expeditious trial of the petitions filed under the Act. Section 21-B provides that the trial should be conducted from day-to-day until its conclusion, and it directs the courts to make every endeavour to conclude the trial within six months from the date of the service of notice of the petition on the respondent. Even appeals preferred under the Act are expected to be concluded within three months from the date of service of notice of appeal on the respondent. This section therefore clearly reveals the mind of the Legislature that stay of the proceedings would not be furthering the ends of justice.

11. Under these circumstances asking a party to the matrimonial proceeding, to take resort to execution proceedings under Section 28 for the enforcement of order of interim alimony or expenses pendentelite, would be obviously resulting in frustration of justice.

12. The same can be said as regards the starting of contempt proceedings, because, contempt proceedings also are likely to take sufficiently long time for their culmination and during that time the original petition would be required to be stayed. Even thereafter it is doubtful whether in contempt proceedings the amount ordered to be paid under Section 24 of the Act would be paid or not.

13. Under these circumstances, both the alternative remedies suggested by the learned Advocate of the appellant would result in frustration of justice and would not enhance the purpose for which Section 24 of the Act was enacted.

14. The question then is what procedure should be adopted by the court to enforce the payment of the amount ordered under Section 24 of the Act? It is an admitted position that apart from S, 28, the Hindu Marriage Act itself does not contain any specific provision for the enforcement of orders passed under Section 24. However, in this connection reference can be made to Section 21 of the Act which says that subject to other provisions contained in the Act all proceedings under the Act shall be regulated, so far as may be, by the Civil P. C. 1908. This means that if the Hindu Marriage Act is silent with regard to certain procedure then the court can avail of the procedure contemplated by the Civil P. C. The Civil P. C. has two specific provisions in the situation where court's orders are not complied with. One provision is Order 11, Rule 21 which provides for striking out of the defence in case a party to the suit fails to comply with any order to answer interrogatories or for discovery or inspection of documents. Almost similar provision is found in Section 35-B when cost is made a condition for further proceedings. There is one more provision contained in Order 17, Rule 3 which says that where any party to a suit to whom time has been granted fails to produce his evidence or to perform any other act necessary for the further progress of the suit for which the time is allowed the court may notwithstanding such default proceed to decide the suit forthwith.

15. So far as Order 17, Rule 3 is concerned it does not contemplate striking out of the defence and resort to ex parte proceedings, and so far as Order 11, Rule 21 is concerned it is not applicable to thefacts of the present case because there is no question of non-compliance with any orders with regard to interrogatories or discovery. As for Section 35-B, the same was not in the statute book when the learned trial Judge passed the disputed order. Under these circumstances, it is apparent that at the relevant time there was no specific provision in the Civil P. C. under which the defence of the appellant-husband could have been struck out for non-compliance with the order passed under Section 24.

16. We, however, find that the court could have utilised its inherent powers under Section 151 C.P.C. for the enforcement of the order in question under Section 151 of the Code it is provided that nothing in the code shall be deemed to limit or otherwise affect the inherent 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. Provisions of Section 151 of the Civil P. C. can be utilised for either of the two purposes, namely, (1) for serving the ends of justice or (2) for preventing the abuse of the process of the court. We are of the opinion that looking to the manner in which the appellant-husband has flouted the order of the court it was both to serve the ends of justice and to prevent the abuse of the court's process that striking out of the defence was necessary.

17. So far as the abuse of the court's process is concerned, the proceedings that we have quoted in the foregoing portion of this judgment clearly show that the appellant-husband was not complying with court's order giving false promises, and was trying to delay the proceedings of the suit by adopting a grossly perverse attitude. His intention obviously was to drive the first respondent to take the lengthy course of execution under Section 28 and to stay the main proceedings for judicial separation. If the court failed in passing the order striking out his defence and required the first respondent wife to resort to execution proceedings under Section 28 staying the main proceedings, that was exactly what the appellant-husband required. His intention was, therefore, to delay the proceedings and thus to abuse the court's process.

18. So far as the ends of justice are concerned, it is obvious that the court should not pass any order which would encourage the parties to flout its ownorders and to delay the proceedings which are expected to be expeditious. Therefore, the order of striking out the defence of such a defaulting party would be only proper order which could be passed in the circumstances of the case. In our opinion, therefore, the order passed by the learned trial Judge striking out the defence of the appellant-husband was the order which could have, and should have been passed under Section 151 of the Code.

19. We shall now shortly deal with certain decided cases on the subject. There is a line of decisions holding that when the defaulting party is the petitioner who has initiated the proceedings under the Hindu Marriage Act, the court can stay these proceedings in order to enforce the order passed by it under Section 24 of the Act. The Punjab case of Smt. Malkan Rani v. Krishan Kumar (AIR 1961 Punj 42) and the Calcutta case of Sm. Anita Karmokar v. Birendra Chandra Karmokar (AIR 1962 Cal 88) are the earlier cases which are referred to in most of the subsequent decisions. In both these cases the principle which is accepted is that where in any proceedings initiated by husband under the Hindu Marriage Act the court directs under Section 24 the petitioner 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. A further principle which is recognised by these decisions is that the enforcement of the order otherwise than by execution is not prohibited or excluded by Section 28 of the Act. Justice Banerjee of the Calcutta High Court has dealt with this point in detail in the case of Smt. Anita Karmokar (supra) to show how the path of execution is not an easy going highway and how it does not provide any short-cut to the destination. In that decision he has observed that to hold that 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. The ratio of both these decisions has been followed in a number of cases all of which need not be cited here but we may profitably refer to the decision given by Dixit, C. J. of Madhya Pradesh High Court in Bhuneshwar Prasad v. Dropta Bai (AIR 1963 MP 259), the decision given by the Punjab HighCourt in Dr. Tarlochan Singh v. Smt. Mohinder Kaur (AIR 1963 Punj 249) and the decision given by the Mysore High Court in M. Ramachandra Rao v. M. S. Kowsalya (AIR 1969 Mys 76). All the above referred decisions proceed on the basis that when the petitioner, who has initiated matrimonial proceedings is a defaulting party, the only efficacious manner in which he should be made to obey the order passed by the court under Section 24 of the Act is to stay the proceedings initiated by him. In other words, the Courts referred to above have accepted the principle that it can exercise its coercive powers under S, 151 of the Civil P. C. to compel the defaulting party to do the right thing and to obey the order of the court,

20. The question which is involved in the instant case before us is what the court should do when the defaulting party is not the petitioner initiating proceedings under the Hindu Marriage Act. It should be noted that in this case the proceedings have been initiated by respondent No. 1 wife for obtaining a decree for judicial separation and the defaulting party is the present appellant-husband who was interested in delaying the proceedings in question. In such cases stay of the proceedings would not prevent the abuse of the court's process, or would not further the ends of justice, because, it is such a stay which would be exactly wanted by the husband who resists the petition for judicial separation. Under the circumstances the manner in which the inherent powers under Section 151 should be exercised is to strike out the defence. That is the only method by which the person interested in resisting the proceedings under the Hindu Marriage Act could be compelled to help the course of justice. We find that such a procedure has been adopted by other Courts especially the Punjab High Court in Ram Swaroop v. Smt. Janak (1972-74 Pun LR 933): (AIR 1973 Punj 40). Dealing with such a situation, Dhillon, J. has referred to the earlier decision of that High Court given in Smt. Malkan Rani (supra) wherein it was observed that stay of proceedings might not be adequate and other steps might have to be taken to put the indigent spouse in funds to prosecute the proceedings, and if the defaulter wilfully neglects or wilfully refuses to comply with the order then there was no reason why contempt proceedings inaccordance with law should not be taken against the defaulter. After referring to the above decision in Malkan Rani (AIR 1961 Punj 42), Dhillon, J. observes (at p. 41 of AIR 1973 Punj):

'In my opinion the appellant in the present case has wilfully and contemptuously failed to obey the directions of this Court by not paying even a single penny to the respondent-wife nor there is any plea raised by the learned counsel for the appellant that the appellant is prepared to pay a part of the amount having become due. In this view of the matter, merely by staying the hearing of the appeal for indefinite time will not meet the ends of justice as this will be a hanging sword on the respondent-wife for all years to come because there is not an iota of hope that the appellant will discharge his duty by complying with the orders of this Court.'

For the above observations the learned Judge has relied upon the decision given by Madras High Court in Mahalingam Pillai v. Amsayalli (1956-2 Mad LJ 289).

21. We do not find it necessary to refer to other decisions of the Punjab High Court which have taken the similar view, but we may refer to an old decision of Bombay High Court in which Marten, J. has made some observations which would support the contentions raised on behalf of the appellant-husband. This Bombay decision is given in Wilhelmina Codd v. Bertie Elijah Codd (AIR 1924 Bom 132). That was a case under Divorce Act, and the observations which lend some support to the appellant's contentions are as under (at page 134):--

'I can only hope that these Chamber orders for security for costs will be reconsidered in the future. I had occasion in another case of Rodger v. Rodger to point out that, as far as I can see, the English authorities do not strike out a husband's 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 counsel's researches have so far been brought before me, is to stay the husband's 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.'

With due respect to the learned Judge, we find ourselves unable to follow thedictum that in no case the defence of the defaulting party can be struck out. The decision may not be of much help in the set of social circumstances pre-vailing in our country. It need not be emphasised that payment of alimony and expenses pendente lite to financially weaker spouse during matrimonial proceedings is a sine qua non of justice which could be rendered in the case, and it would be no argument that that payment can be secured by execution or by contempt proceedings before the court, We find that even the High Court of Bombay has not followed the above observations with rigidity. This will be apparent from the subsequent judgment given by that very High Court in Prithyirajsingji Mansinghji v. Bai Shiv-prabhakumari (AIR 1960 Bom 315). There the court has accepted the principle that the defence by a party in a matrimonial case could be struck off for failure to pay interim maintenance it the refusal is contumacious. The same principle is accepted by the Bombay High Court in Shankar Deoba Patil v. Ganpatilal Shiodayal Chamedia (AIR 1971 Bom 87). We find that in a recent decision given by the Delhi High Court in Smt. Anuradha v. Santosh Nath Khanna (AIR 1976 Delhi 246) it is held that the inherent jurisdiction of the court includes a power to review an interlocutory order, and to recall and cancel previous orders which cause injustice. It also possesses the powers to stay the proceedings or strike off the defence of the defendant in order to compel obedience to its order or prevent abuse of the process of the court.

22. In view of this position we are of the opinion that the order passed by the lower court striking out the defence of the appellant was quite proper. The subsequent ex parte proceedings taken by the court were therefore quite in order and hence the decree passed by that court for judicial separation in favour of the first respondent is found to be correct and we see no reason to interfere with the same. The appeal therefore fails and is dismissed.


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