Wednesday, 30 November 2016

Whether court dismiss divorce petition by husband without giving him opportunity to clear arrears of maintenance?

 In view of the above, even if it is held that the learned Family Court can pass an order, in exercise of powers under section 151 of the Code of Civil Procedure, either to dismiss the Hindu Marriage Petition and/or refuse to grant any relief in the Hindu Marriage Petition on failure on the part of the husband/defaulting party to clear the arrears of maintenance or defence of the defaulting party can be struck off, as in the present case, as observed hereinabove, no opportunity has been given to the appellant husband to clear the arrears within reasonable time and on failure to clear the arrears, Hindu Marriage Petition can be dismissed or defence of the defaulting party/husband can be struck off. Under the circumstances, the impugned order passed by the learned Family Court cannot sustain and the same deserves to be quashed and set aside.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
First Appeal No. 202 of 2016
Decided On: 21.07.2016
 Pravinsinh Himmatsinh Solanki
Vs.
 Induben Solanki
Coram:M.R. Shah and A.S. Supehia, JJ.
Citation:AIR 2016(NOC)713 GUJ

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Family Court, Godhara in Hindu Marriage Petition No. 139 of 2010 (Old HMP No. 7 of 2010) dated 30/6/2015, by which the learned Judge has dismissed the Hindu Marriage Petition on the ground that the appellant herein - husband - original opponent has failed to pay arrears of maintenance to the respondent wife.
2. Facts leading to the present appeal, in nutshell, is as under:--
2.1. The appellant herein - husband filed Hindu Marriage Petition No. 7 of 2010 which was subsequently renumbered as Hindu Marriage Petition No. 139 of 2010 on the file of the learned Family court, Godhara for the decree of divorce - dissolution of marriage under section 13(1)(A) of the Hindu Marriage Act.
2.2. It appears that there was some order passed by the learned Family Court below application Ex. 33 awarding/granting interim maintenance to the wife and by order dated 21/2/2014, the learned Family court has awarded Rs. 15,000/- per month to the wife towards interim maintenance.
2.3. It appears that, according to the wife, the appellant herein - husband did not clear arrears of interim maintenance and the amount due and payable towards the interim maintenance has not been paid and therefore, the respondent herein - wife submitted application Ex. 46 requesting to pass appropriate order striking off the defence against the husband.
2.4. On the said application, the learned judge has passed the impugned order straightway dismissing the Hindu Marriage Petition on the ground that the appellant herein - husband has failed to make payment of interim maintenance as per order passed below application Ex. 33.
2.5. Feeling aggrieved and dissatisfied with the impugned order dismissing the Hindu Marriage Petition, the appellant herein - husband has preferred the present First Appeal.
3. Ms. Dharitri Pancholi, the learned advocate appearing on behalf of the appellant herein - husband has vehemently submitted that as such, before dismissing the Hindu Marriage Petition on the ground that the appellant has not paid the interim maintenance as per the order passed below application Ex. 33, no opportunity has been given to the appellant husband asking that on failure to clear the arrears of maintenance, Hindu Marriage Petition shall be dismissed.
3.1. Ms. Dharitri Pancholi, the learned advocate appearing on behalf of the appellant herein - husband has further submitted that even otherwise the impugned order passed by the learned Family Court is even beyond the relief sought by the respondent herein - wife in the application Ex. 46. It is submitted that, as such, in the application Ex. 46, relief sought by the respondent herein - wife was to strike off the defence. It is submitted that despite the above, the learned Family Court has passed the impugned order dismissing the Hindu Marriage Petition, though the same was not even prayed by the respondent wife.
3.2. Ms. Dharitri Pancholi, the learned advocate appearing on behalf of the appellant herein - husband has further submitted that, as such, according to the appellant husband, amount due and payable towards the interim maintenance has been paid and as such there is a serious dispute with respect to entitlement of the interim maintenance, more particularly from which date.
4. Present appeal is vehemently opposed by Mr. Shasvat Shukal, learned advocate appearing on behalf of the petitioner respondent herein - wife.
4.1. Mr. Shasvat Shukal, learned advocate appearing on behalf of the respondent - wife has vehemently submitted that in the facts and circumstances of the case, more particularly when it has been observed and fond by the learned Family Court that the appellant husband has failed to make payment of entire amount of interim maintenance and thereafter when the respondent wife submitted application Ex. 46, the learned Family Court has not committed any error in dismissing the main Hindu Marriage Petition. It is submitted that, as such, the order would be maintainable in exercise of the powers under section 151 of the Code of Civil Procedure.
4.2. Mr. Shasvat Shukal, learned advocate appearing on behalf of the respondent wife has heavily relied upon the decision of Bombay High Court in the case of Vanmalal w/o. Maroti Hatkar Versus Maroti Sambhaji Hatkar, reported in MANU/MH/0023/2000 : as well as decision of the Madras High Court rendered in the case of Hema Versus Parthasarathy, reported in MANU/TN/1481/2002 : (2002) 3 MLJ 319 in support of his above submissions.
4.3. Relying upon above decisions, Mr. Shasvat Shukal, learned advocate appearing on behalf of the respondent wife has submitted that the impugned order can be said to have been passed by the learned Family Court in exercise of powers under section 151 of the Code of Civil Procedure. It is submitted that, therefore, even to do complete justice, the appellant husband may be directed by this Court to clear arrears of interim maintenance.
Making above submissions and relying upon above decisions, it is requested to dismiss the present appeal.
5. Heard the learned advocates appearing on behalf of the respective parties at length.
5.1. At the outset, it is required to be noted and it is not in dispute that by the impugned order the learned Judge - Family Court has dismissed the Hindu Marriage Petition preferred by the husband solely on the ground that the appellant husband - original applicant has failed to clear arrears/make payment of interim maintenance as per order passed below Ex. 33. The impugned order has been passed by the learned Family Court on the application submitted by the respondent wife below Ex. 46. However, considering application Ex. 46 and the relief sought in the application Ex. 46, it appears that the relief sought by the respondent wife in the said application was to strike off the defence of the appellant husband and there no prayer was sought that on non-payment of the entire amount of interim maintenance/arrears of interim maintenance, Hindu Marriage Petition be dismissed. Thus, in an application given by the respondent wife for appropriate order to strike off the defence, the learned Judge has dismissed the entire Hindu Marriage Petition. Thus, the learned Family Court has passed the impugned order beyond the prayers sought in the application Ex. 46.
5.2. Even otherwise, also the impugned order passed by the learned Family court dismissing the Hindu Marriage Petition on the ground that arrears of maintenance has not been cleared/arrears has not been paid, cannot be sustained, as before dismissing the Hindu Marriage Petition on the ground that the appellant husband has not clear the arrears of maintenance, no opportunity has been given to the appellant husband and/or he is not called upon to show cause and/or informed that on non-payment of arrears of interim maintenance, Hindu Marriage Petition shall be dismissed. Even as observed by the Madras High Court in the case of Hema Versus Parthasarathy (supra) before either dismissing the Hindu Marriage Petition or striking off the defence, an opportunity has required to be given to the husband to clear the arrears of maintenance within a reasonable time and on failure to make the payment of arrears of maintenance either Hindu Marriage Petition can be dismissed or defence can be struck off. Therefore, even if such an order can be passed in exercise of powers under section 151 of the Code of Civil Procedure, to do complete justice to the wife in whose favour order of interim maintenance is passed, in that case also before passing order of dismissal of the Hindu Marriage Petition or his defence is struck off, an opportunity is required to be given to the husband by giving him reasonable time, so that the husband if desirous to make the payment can do so and on failure to pay/clear the arrears of maintenance only, consequences of either dismissal of Hindu Marriage Petition or order of striking off the defence may follow.
In the present case, as observed hereinabove, neither any such opportunity has been given to the husband nor even the husband was informed that on failure to make the payment of arrears of maintenance, Hindu Marriage Petition shall be dismissed.
5.3. Now, so far as the decision of the Madras High Court in the case of Hema (supra) relied upon by the learned advocate appearing on behalf of the respondent wife is concerned, it is required to be noted that in the case of Hema (supra), in fact, wife submitted an application either to dismiss the petition or to strike off the defence, which is lacking in the present case. As observed hereinabove, in the present case, the only prayer sought by the respondent wife in the application Ex. 46 was to strike off the defence and there was no prayer sought to dismiss the Hindu Marriage Petition.
Even the Madras High Court in the case of Hema (supra) in para 14 has observed and held as under:--
"14. Hence the legal position is that if the husband fails to make payment of interim maintenance or litigation expense, as ordered by the Court, then the wife can file an application praying the Court to dismiss the petition or strike off the defence, as the case may be. In such case, the Court will consider the same and dispose it off on merits. In case if the Court comes to the conclusion that the application has to be allowed, then it should not straight away pass an order but give another opportunity giving reasonable time, minimum of three weeks, so that the husband, if he desires to make the payment, can do so. Only on his failure to make the payment, the original petition can be dismissed or defence can be struck off."
5.4. Similarly, so far as the decision of the Bombay High Court in the case of Vanmalal w/o. Maroti Hatkar (supra) relied upon by the learned advocate appearing on behalf of the respondent wife is concerned, it is required to be noted that in the case before the Bombay High Court, the issue was only with respect to striking off the defence/striking off the pleadings, of the defaulting party. Under the circumstances, even if it is believed and accepted that on non-compliance of the order of interim maintenance, either the Hindu Marriage Petition can be dismissed and/or defence can be struck off in exercise of powers under section 151 of the Code of Civil Procedure, in that case also, before passing such an order, one another opportunity is required to be given to the husband/defaulting party to comply with the order awarding interim maintenance and after giving reasonable time to pay the arrears of interim maintenance, and even thereafter also if the arrears of interim maintenance is not paid/cleared then and then only order can be passed either dismissing the Hindu Marriage Petition or striking off the defence of the defaulting party.
5.5. At this stage, the reason why we are observing that such an order, dismissing the Hindu Marriage Petition or striking off the defence of the defaulting party, can be passed under section 151 of the Code of Civil Procedure only after giving an opportunity and reasonable time to clear the arrears of maintenance, is that the defaulting party cannot be permitted to take benefit of his own wrong.
5.6. At this stage, some of the observations made by the Madras High Court, Andhra Pradesh High Court, Kerala High Court and Bombay High Court, which are referred to by the Madras High Court in the case of Hema (supra) are required to be considered and referred to, which are as under:
"(a) In Raju v. Devaki, MANU/TN/0495/1987 : 1988(1) Law Weekly 44, this Court had occasion to consider a question namely when a person is directed to pay certain amount as interim maintenance pending proceedings, disobeys the same, can the Court refrain from proceeding with the trial. In that case the Court observed as under:
"It has been held by this Court that S. 151, C.P.C. could be invoked to stay the trial of an O.P., in which the petitioner fails to pay maintenance granted under S. 24 of the Hindu Marriage Act. Therefore, when a spouse fails to pay interim maintenance as ordered by Court, the court has no other alternative than to stay the trial of the O.P."
(b) The next ruling that can be referred to is the one reported in MANU/TN/0268/1989 : 1989 (2) Law Weekly 423 (Narayana Nadar v. Jayakodi Ammal). In that case, the wife filed a petition praying the Court to grant a relief of restitution of conjugal rights. In the said original petition, an application was filed praying for interim alimony and so also litigation expenses. The husband resisted the same but the Court ordered interim alimony so also some amount for litigation expenses. The aggrieved husband preferred a revision, but however the same was dismissed. As the amount awarded by way of interim alimony, etc., was not paid, the wife filed an application under Section 151 of Code of Civil Procedure praying for striking out the defence in the original petition. The court accepted the request and passed an order striking the defence of the husband. The correctness of the same was questioned by way of revision and while disposing of the said revision, the learned single Judge of this Court observed as under:--
"... There is no specific provision in the Act to the effect that non-compliance with an order passed by the Court in the course of matrimonial proceedings, would enable the other party to seek the striking out of the defence of the defaulting party. Further, under S. 151, Code of Civil Procedure, which is indisputably applicable to proceedings under the Act, the Court may exercise its powers for serving the ends of justice or for prevention of the abuse of the process of Court. In this case, it may be that the petitioner had not done or failed to do anything, amounting to the abuse of the process of Court. Even so, in order to serve the ends of justice, particularly in matters relating to matrimony, it cannot be regarded that the Court is helpless when a party flouts and disobeys an order of Court for payment of interim alimony and litigation expenses and thereby puts the other party at a disadvantage in the matter of the conduct of the proceedings, necessarily leading to a delay in the conclusion of such proceedings. Under those circumstances, the order of striking out the defence of the defaulting party, would subserve the ends of justice and only such an order would enable the fulfilment of the objects of the Act of preventing inequity in the matter of conduct of the matrimonial proceedings and securing speedy relief as well. It is found that the respondent had initiated proceedings for restitution of conjugal rights and by the non-payment of the interim alimony and litigation expenses by the petitioner, if the proceedings are to be stayed till the amount is realised by execution, many years would roll by in the interval and in the absence of any effective method of stopping ageing process of the parties, the relief that may ultimately be made available, may become illusory or even futile. It seems to me that the only method by which a person opposing matrimonial proceedings under the Act, could be compelled to further the objects of the Act and to secure speedy disposal of the matrimonial causes and reliefs prayed for therein, is by striking out the defence of the defaulting party...."
(c) The Andhra Pradesh High Court in Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shyamala, MANU/AP/0201/1989 : II (1990) DMC 486, had occasion to consider the question whether for the default to pay interim alimony, the defence of the husband can be struck of. The Court answered in the affirmative and ruled thus, "I am of the view that to secure the ends of justice and to prevent the abuse of the Court's process, striking out the defence can be resorted to under Section 151, CPC. The intention of the petitioner is to drive the respondent to take recourse to execution under Section 28 and to stay the main proceedings. If execution has to be resorted to staying the main proceedings, the petitioner would be achieving the object of protracting the proceedings. That would also be encouraging the parties to flout the order of the Court and to delay the proceedings which are expected to be expeditious. In such circumstances, striking out the defence of such a defaulting party would be a proper order and the trial Court was right in passing the said order."
(d) The High Court of Kerala in Mangalam v. P.S. Krishna Pillai, MANU/KE/0032/1993 : II (1992) DMC 545, took a similar view. In that case, the Court observed that the trial Court had inherent jurisdiction under Section 151 of Code of Civil Procedure to give effect to its order and prevent the abuse of the process of the Court by striking off the defence, even if there is no such provision in the Hindu Marriage Act.
(e) A learned single Judge of Orissa High Court also took a similar view in Ghasiram Das v. Srimati Arundhati Das and another, MANU/OR/0005/1994 : In fact, the Court referred to the earlier ruling of the Delhi High Court in Smt. Anuradha v. Santosh Nath Channa, MANU/DE/0141/1975.
(f) In Vanmala v. Maroti Sambhaji Hatkar, MANU/MH/0032/2000, a learned single Judge of Bombay High Court pointed out the difficulties in the wife in executing the order in the following words,
"The remedy of execution is not an easy remedy. The execution does not at all provide short cuts to the destination. The difficulties of a successful litigant begin when he succeeds to obtain an order in his favour. Driving out a penniless wife to initiate a separate execution proceedings for the purpose of recovery of arrears of interim alimony and expenses of the proceedings frustrates the very purpose and spirit of Section 24 of the Hindu Marriage Act. The approach adopted by the learned Matrimonial Court makes the very purpose of Section 24 of the Hindu Marriage Act redundant and nugatory.
.... A Court can, in exercise of its powers under Section 151 of the Civil Procedure Code, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumaciously flouts the order of the Court..... Similarly, if the erring party is the respondent, the Court can strike off the defence of such a party if it is found that the respondent is deliberately flouting the orders of the Court.
.... In befitting situation and in appropriate circumstance, the Matrimonial Court should not hesitate to invoke the inherent powers under Section 151 of the Civil Procedure Code in the matter of implementation of order with regard to interim alimony and the expenses of the litigation by staying the proceedings filed under the Hindu Marriage Act for non-compliance of the order passed under Section 24 of the aforesaid Act and by striking off the pleadings of defaulting party."
(g) In Kannamma v. Y. Subramaniam, MANU/TN/0716/1997 : 1997 (1) Law Weekly 637, a learned single Judge of this Court dealing with a similar question, ruled as under,
"... If the order of the court below is not obeyed, petitioner herein (wife) is entitled to initiate proceedings against the husband for disobedience of orders of Court. At the same time, the lower court also will consider whether it should continue to stay the trial or whether it should dispose of the main petition by dismissing the same for non-compliance of the order. If the Court feels that some more time has to be given for compliance of the Order, this order shall not stand in the way. In such a case, further proceedings of the main petition shall stand stayed. Even during the period of stay, respondent is bound to pay maintenance to both the children and alimony to the petitioner at the rates fixed by the earlier order of the court below. If the court below is inclined to grant some time for the husband to make the payment, it should not adjourn the main H.M.O.P. indefinitely, and it is made clear that whenever the trial begins, the entire amount due as on that date must have been paid."
6. In view of the above, even if it is held that the learned Family Court can pass an order, in exercise of powers under section 151 of the Code of Civil Procedure, either to dismiss the Hindu Marriage Petition and/or refuse to grant any relief in the Hindu Marriage Petition on failure on the part of the husband/defaulting party to clear the arrears of maintenance or defence of the defaulting party can be struck off, as in the present case, as observed hereinabove, no opportunity has been given to the appellant husband to clear the arrears within reasonable time and on failure to clear the arrears, Hindu Marriage Petition can be dismissed or defence of the defaulting party/husband can be struck off. Under the circumstances, the impugned order passed by the learned Family Court cannot sustain and the same deserves to be quashed and set aside.
Consequently, present appeal is allowed. The impugned order passed by the learned Family Court, Godhara in Hindu Marriage Petition No. 139 of 2010 (Old HMP No. 7 of 2010) dated 30/6/2015, dismissing the Hindu Marriage Petition on the ground of non-clearance of the arrears of interim maintenance, is hereby quashed and set aside and the matter is remanded to the learned Family Court to pass appropriate order in accordance with law and on merits and in light of the observations made hereinabove. The Hindu Marriage Petition is ordered to be restored on the file of the learned Family Court, Godhara for passing appropriate order afresh, as stated above.
It will be open for the respondent herein - wife to submit an appropriate application afresh before the learned Family Court requesting to dismiss the Hindu Marriage Petition or strike off the defence of the appellant herein - husband on the ground of non-payment/non-clearance of arrears of the interim maintenance by the appellant herein - husband. If such an application is preferred within a period of four weeks from today, the learned Family Court to pass appropriate order in accordance with law and on merits, considering the observations made hereinabove, at the earliest but not later than three months from the date of filing of such an application by the respondent herein - wife.
Present application is allowed to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.

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