Court: Orissa High Court
Equivalent citations: AIR 1987 Ori 167
Bench: S Mohapatra
Binayak Chandra Pady vs Kamala Padhy Alias Padhiani on 7 May, 1986
Effect of Non Payment of Maintenance Arrears in HMA 24
1. This Civil Revision by the husband arises out of an order dismissing a matrimonial proceeding for divorce under the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for non-compliance of the direction to the husband to pay maintenance pendente lite and litigation expenses to the wife within the time stipulated.
2. On 16-7-1983, the learned Subordinate Judge passed an order directing the husband for payment of monthly maintenance at the rate of Rs. 150/- and expenses of the proceeding of Rs. 300/- to the opposite party who is his wife. No time was stipulated in the order for the payment of the amounts. Shortly thereafter, on 10-8-1983, an application was filed on behalf of the wife that the suit should be dismissed for non-compliance of the order. Opportunity was given to the husband to file objection to such a petition. On 27-10-1983, the husband filed the objection stating therein that he has no capacity to pay the amount ordered. The application with the objection was considered on 8-3-1984 and order was passed directing payment of the entire arrears by 9-4-1984. The order dt. 8-3-1984 reads as follows : —
“Advocate for plaintiff files petition for time for hearing of petition filed by defendant on the ground that the petitioner-plaintiff is suffering. Advocate for defendant files hazira. Heard. The plaintiff in his counter has stated that he has no capacity to pay and as such his default is not intentional. The plaintiff was ordered to pay alimony pendente lite to his wife, the defendant at the rate of Rs. 150/-per month from the date of the suit and a sum of Rs. 300/- towards her costs. Cost of litigation as per the order dt. 16-7-1983 passed in M.J.C. 371/75. Till now the plaintiff has paid nothing to the defendant. He is directed to pay the arrear alimony and legal expenses to the defendant as per the final order passed in M.J.C. 371/75 by 9-4-84 failing which he would be non-suited for contumacious refusal to pay alimony pendente lite.”
The amount not having been paid by the date fixed, the suit was dismissed as per the previous order dt. 8-3-1984. The impugned order reads as follows :
“9-4-84: Parties file hazira. The plaintiff has not paid the arrear alimony to the defendant in spite of directions.
The suit is dismissed for contumacious refusal of the plaintiff to pay the alimony pendente lite as per the principle laid down in Mahalingam Pillai v. Ansavalli reported in (1956) 2 Mad LJ 289. No costs.
3. Mr. U.C. Panda, the learned counsel for the petitioner submitted that the order of dismissal of the suit amounts to exercise of jurisdiction with material irregularity on the following grounds: —
(i) Maintenance has been granted in a partition suit to the opposite party and her son and therefore, the order under Section 24 of the Act is unjustified since the ingredients thereof have not been considered by the Court.
(ii) There being no direction in the order under Section 24 of the Act for consequences in default to pay the amount within a stipulated time and no time having been stipulated, a subsequent order to that effect is illegal.
(iii) Alternative mode of recovery of the sum by execution of the order being available, the dismissal of the suit for non-payment is unjustified.
(iv) The grant of pendente lite maintenance and litigation expenses being a provision of a Special Statute in absence of specific provision for dismissal of the suit for non-compliance of the order, the suit could not have been dismissed in exercise of inherent power.
(v) The order is vitiated in the absence of any material or reason in support of the contumacious conduct when the petitioner has asserted that having no means to pay the default is not intentional.
Mrs. A.K. Padhi, the learned counsel for the opposite party challenged each of the grounds raised by Mr. Panda and submitted that the benevolent provision in Section 24 of the Act should be considered in a manner to help the opposite party in whose favour the order has been passed and this Court should not exercise its revisional jurisdiction to interfere with the same. The rival contentions require careful consideration.
4. In a decision of this Court reported in ILR (1964) Cut 958 : (AIR 1967 Orissa 19) (Ganga Devi v. Krushna Prasad Sharma) it has been laid down that –
(i) the applicant under Section 24 of the Act is to establish as in a suit that she has no independent income sufficient for her support and for necessary expenses of the proceeding, or, if she has income, the nature of and quantum of the same;
(ii) the income of the opposite party and the quantum thereof; and
(iii) the nature and extent of her need –both for maintenance and for expenses of the proceeding.
On perusal of the order dt. 16-3-1983, I find that the learned Subordinate Judge failed to keep the ingredients in mind while giving the direction although he took note of the maintenance granted in the partition suit. However, I am not inclined to examine the correctness of the order three years after when the petitioner did not prefer to assail the same within the period of limitation provided for the same under the Limitation Act, 1963, when in the said order it has been found that the opposite party has no income sufficient for her support and for necessary expenses of the proceeding.
5. There is no dispute that the order dt. 16-3-1983 did not stipulate the dismissal of the suit for non-compliance of the order within a stipulated time. There is also no dispute that the amount directed to be paid can be realised by execution of the same. In the circumstance, it is to be considered whether the Court is to exercise its inherent power to dismiss the suit for non-compliance of the order after stipulating the time for payment in another order and imposing the condition that the default would entail dismissal of the suit.
6. Mrs. Padhi is correct in her submission that the benevolent provision in Section 24of the Act should be construed in favour of the applicant. She has cited several decisions where the suit has been dismissed in exercise of the inherent power for non-compliance of the order. All those decisions of Bombay, Calcutta, Madras and Punjab High Courts have been considered by the learned commentator Mr. Jaspal Singh in his treatise ‘Hindu Law of Marriage and Divorce’ while considering Section 24of the Act. Except Andhra Pradesh High Court in a decision reported in (1975) 2 APU (HC) 70 (B.C. Kotireddy v. B. Ramanamma) all other High Courts are of the view that the Court has inherent power to get its order under Section 24 of the Act complied with. My view independently taken is also supported by the views expressed by majority of the High Courts in the decisions reported in AIR 1924 Bom 132 (W. Codd v. B.E. Cold); AIR 1960 Bom 315 (Prithyirajsinhji v. Bai Shivprabhakumari); ILR (1946) 1 Cal 604 (Tara Singh v. Jaipal Singh); (1956) 2 Mad LJ 289 (Mahalingam Pillai v. Amsavalli); AIR 1973 Punj & Har 40 (Ram Swaroop v. Janak); and 1977 Mad LR117 (Parkasho v. Lachhman Singh).
7. To get the order complied with the inherent power can be exercised by stay of the proceeding initiated by the defaulter or by striking out his defence where the proceeding has been initiated by the party in whose favour the order is passed or to dismiss the application of the defaulter initiating the proceeding. The normal rule of restraint to exercise inherent power in cases of availability of alternative forum would not be attracted to realise the money as per the order for pendente lite maintenance and litigation expenses, since the same is to be paid to a person having no sufficient means. Execution of the order for the same takes time in view of the procedure provided under Order 21, CP.C. and without the maintenance and litigation expenses, the party in whose favour the order is passed does not get a fair chance to prosecute or defend the proceeding as the case may be. Where a party does not get adequate opportunity natural justice is violated. Therefore, the court conies to the rescue of that person in exercise of the inherent power. However, the wider the power, the greater should be the restraint. Courts having wide power, therefore, should carefully consider the facts and circumstances to use only that much of power which would be sufficient for getting the order complied with and not beyond. It should be remembered that in absence of specific provision, the order should not be penal in nature. A just balance is to be struck.
8. There can be no doubt that contumacious conduct or deliberate act not to comply with the order can be dealt with stiffly by dismissing the application or striking of the defence of the defaulter as the case may be. Before exercising the said power, court is to give a clear finding based on reasons and material to that effect.
9. Since the Court has the power to stay the proceeding or dismiss the same, the power should be exercised by doses. It should first stay the proceeding and give opportunity to the defaulter to pay the same. In spite of it where the default continues it might dismiss the application initiated by the defaulter in case, it comes to the conclusion that the nonpayment was deliberate and contumacious. However, the power should not be allowed to be utilised by a party to harass the other party to whom direction is given merely on account of non-payment where the circumstances would indicate that the nonpayment was on account of reasonable cause. In such cases, the party entitled to receive pendente lite maintenance and expenses of the proceeding can be allowed to execute the order and till then the proceeding can be stayed.
10. In the objection in the present case, it has been clearly stated that the petitioner is not in a position to pay the amount directed by the order. The trial court has not taken, into consideration its assertion in the objection to find out the correctness thereof and dismissed the same merely by the order to deem the non-payment as contumacious. The petitioner is not without any maintenance in this case although the same is held not to be sufficient for her maintenance and expenses of the proceeding. So far as litigation expenses, the same could have been executed by the aid and assistance of the Legal Aid and Advice Board constituted by the State Government under Article 39A of the Constitution. The Court could have stayed the litigation till then. These aspects of the matter would be material for consideration for the trial Court to decide whether the suit was to be stayed or dismissed in case it would have come to the conclusion that the petitioner had the financial position to pay the amount ordered. Where the finding would be that the financial condition of the petitioner deteriorated to the extent that he is not able to pay the amount to be paid, the result would be different depending upon the facts and circumstances.
11. Since the exercise of the inherent power is to depend on the facts and circumstances, normally, this Court would not exercise its revisional power. In this case, however, the Court exercised the jurisdiction with material irregularity since there is no finding.
12. In the result, the Civil Revision is allowed and the matter is remitted back for reconsideration. As regards costs of the civil revision, although the petitioner has been successful, he is to pay the costs to the opposite party who has been dragged to this Court for which she is not responsible. In case an application would have been filed in the revision under Section 24 of the Act, this Court would have awarded the litigation expenses. In the circumstances, the petitioner shall pay the consolidated cost of Rs. 150/- in the civil revision to the opposite party.