Sunday, May 26, 2013

matri fights since 1999, no relief till 2013! non payment interim alimony arrears will NOT lead to dismissal of new case for differ. relief

Notes

  • Couple fighting since 1999
  • that is a MERE 24 years now !!!!
  • NO substantive relief till 2013, parties still stuck in litigation, appeals etc
  • If you are banging your head on the wall wondering what is happening to speedy justice in this country, I am NOT responsible for your injuries or damages to the wall !! :-)
  • a key question of NON payment of arrears towards, interim maintenance and so the need to strike of fresh cases by the husband has been raised by the wife
  • The court analyses the matter in details and decrees, "....for non payment of arrears of  interim alimony pendente lite, after the dismissal of the main case, when a fresh proceedings for a different relief is initiated by the defaulting party, the same is not liable either to be dismissed or to be struck off..."


  case from judis dot nic site


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.02.2013

CORAM

THE HONOURABLE MR. JUSTICE S.NAGAMUTHU

Civil Revision Petition (PD) No.3397 of 2012
and
M.P.No.1 of 2012







Kayalvizhi                .. Petitioner

-Versus-

A.Shanmugam                .. Respondent





    Petition filed under Article 227 of the Constitution of India, praying to set aside the fair and decretal order dated dated 07.08.2012 passed in I.A.No.1204 of 2012 in H.M.O.P.No.247 of 2008 on the file of the learned Principal District Judge, Salem.




    For petitioner    : Mr.A.K.Kumarasamy

    For respondent     : Mr.P.V.Balasubramanian



ORDER

    The petitioner is the wife of the respondent. She has come up with this revision challenging the order dated 07.08.2012 made in I.A.No.1204 of 2012 in H.M.O.P.No.247 of 2008 on the file of the learned Principal District Judge, Salem.
   
    2. The facts leading to this revision are as follows:- The respondent herein, earlier filed H.M.O.P.No.114 of 1999 against the petitioner herein for judicial separation.  During the pendency of the same, the petitioner herein filed I.A.No.220 of 2000 seeking interim maintenance pending disposal of the HMOP No.114 of 1999 and also for litigation expenses.  The learned Subordinate Judge, Erode allowed the said interim application thereby directing the respondent herein to pay a sum of Rs.10,000/- per month towards maintenance. Challenging the same, the respondent filed revision in C.R.P. No.2380 of 2004 before this Court. This court, by order dated 08.09.2006, modified the order of the learned Subordinate Judge and directed the respondent to pay a sum of Rs.6,000/- per month towards maintenance.
   
    3. According to the petitioner, in pursuance of the said order for interim maintenance, the maintenance amount was not paid by the respondent. Therefore, the petitioner filed an execution petition in E.P.No.200 of 2002 and the same was pending. During that time, the respondent paid a sum of Rs.1,10,000/- towards arrears.  As per the order of this Court 75% of the said amount has already been withdrawn by the petitioner. It is the further contention of the petitioner that thereafter no more amount was paid towards interim maintenance. 

    4. While so, the said H.M.O.P.No.114 of 1999 was dismissed for default on 25.02.2002. The same was not later on restored.

    5. Subsequently, the respondent has filed H.M.O.P.No.19 of 2005 before the learned Subordinate Judge, Erode, seeking divorce on the ground of cruelty which was subsequently transferred to the file of the learned Principal District Judge, Salem and renumbered as  H.M.O.P.No.247 of 2008. The petitioner herein has made appearance before the trial court and has filed a counter. The respondent herein was examined as P.W.1. At that stage, the petitioner herein filed I.A.No.1204 of 2012 seeking to strike off all the defences made by the respondent herein in H.M.O.P.No.247 of 2008 or in the alternative to dismiss H.M.O.P.No.247 of 2008. By order dated 07.08.2012, the learned Principal District Judge, Salem, dismissed the said application. Aggrieved by the same, the petitioner is now before this Court with this revision petition.

    6. I have heard the learned counsel on either side and also perused the records carefully.

    7. According to the petitioner, after having allowed the earlier petition in  H.M.O.P.No.1149 of 1999 to be dismissed for default, the respondent herein has filed a petition in H.M.O.P.No.247 of 2008 with false allegations. It is further contended that the earlier petition in H.M.O.P.No.114 of 1999 was allowed to be dismissed for default only with a view to avoid payment of interim alimony pendente lite as directed by this court in C.R.P.No.2380 of 2004. Having failed to pay the said amount, it is not open for the respondent to maintain H.M.O.P.No.247 of 2008. Thus, according to the petitioner, either defences available to the respondent in the said H.M.O.P. should be struck off or in the alternative, H.M.O.P. itself should be dismissed.

    8. The learned counsel for the petitioner would submit that Section 24 of The Hindu Marriages Act [herein after referred to as "the Act"] is a benevolent provision for the needy spouse and the same cannot be allowed to be defeated in the manner in which an attempt has been made in this case by the respondent herein. The learned counsel for the petitioner has relied on a judgement of this court in R.Kuppusamy v. Kanagalakshmi, 1997 (III) CTC 442 in order to  substantiate his contention that the order made under Section 24 of the Act can be executed even after the termination of the main petition. The learned counsel also relies on the few judgements to substantiate his contention that in the event there is a failure to pay interim alimony, even subsequent proceedings can be struck off. I will deal with those judgements at appropriate stages of this order.
   
    9. But, the learned counsel appearing for the respondent would stoutly oppose this revision petition. According to him, the entire arrears towards interim alimony as per the order of this court made in C.R.P.No.2380 of 2004 has been paid. He would further submit that strangely interim alimony is sought for the period commencing from the date of dismissal of the earlier petition in H.M.O.P.No.114 of 1999 and till date.  The learned counsel would submit that the order for interim alimony passed in a proceeding shall have force only until the conclusion of the said proceeding and the same will not cover any period beyond the date of disposal of the main petition.  The learned counsel would further submit that assuming that there was some amount remaining unpaid that cannot be a ground at all to strike off all the defences available in a different proceeding or to dismiss a different H.M.O.P. itself. The learned counsel would further submit that the judgements upon which reliance has been made by the learned counsel for the petitioner are not applicable to the facts of the present case.
   
    10. I have considered the above submissions.
   
    11. Admittedly, as per the order of this Court made in C.R.P.No.2380 of 2004, the respondent had to pay a sum of Rs.6,000/- per month towards interim alimony pendente lite.  Section 24 of the Act empowers a Court, before whom a matrimonial dispute is pending under the provisions of The Hindu Marriages Act, to order for maintenance for the period ending with the disposal of the main case.  The order of interim maintenance cannot cover any period beyond the date on which the main petition itself is disposed of or dismissed.  If any maintenance is to be ordered for a period beyond the date of disposal of the main petition, the said order should have been passed under Section 25 of the Act.  But, here, in this case, what is sought to be enforced is not an order made under Section 25 of the Act, but, it is  made only under Section 24 of the Act, which will not cover any period beyond the date on which the original petition in H.M.O.P.No.114 of 1999 was dismissed for default.
   
    12. Now, let us see whether the amount of arrears for the said period as per the order  made in C.R.P.No.2380 of 2004 has been paid or not. According to the petitioner, the said amount has not been paid, whereas, according to the respondent, the entire amount has been paid. This is essentially a disputed fact. In respect of the arrears of interim alimony, admittedly, E.P.No.200 of 2002 has been filed. Whether any amount has been paid or any amount remains unpaid, will be considered only in the execution proceedings in E.P.No.200 of 2002. Therefore, no opinion could be expressed by this Court in this revision about the same.
   
    13. Assuming that some amount remains unpaid as ordered in C.R.P.No.2380 of 2004, in my considered opinion, on that account, the present petition in H.M.O.P.No.247 of 2008 cannot be either struck down or dismissed.  The reasons are manifold. First of all, for non compliance of the order made under  Section 24 of the Act, of course,  this court, by exercising its power,  can strike off the main petition. But, in this case, the main petition in H.M.O.P.No.114 of 1999, no more survives and, therefore, the question of striking off the same does not arise. H.M.O.P.No.247 of 2008 is altogether a different proceeding. As I have already pointed out, H.M.O.P.No.114 of 1999 was filed  for judicial separation whereas, H.M.O.P.No.247 of 2008 is for divorce. It is needless to point out that the grounds upon which divorce is sought for are different from the grounds, upon which judicial separation was sought for under the provisions of the Hindu Marriages Act. Thus, in my considered opinion, non payment of arrears of interim alimony as ordered under Section 24 of the  Act, cannot be a ground either to strike off or dismiss altogether a different subsequent proceeding. Let me now consider the judgements relied upon by the learned counsel for the petitioner one after the other.
   
    14. At the outset, the learned counsel for the petitioner relied on a judgement of this Court in R.Karuppusamy v. Kanagalakshmi, 1997 (III) CTC 442. That was a case where interim alimony was ordered to be paid in an Interlocutory Application. But, that amount was not paid. Therefore, an execution proceeding was initiated. The said execution proceeding came to be initiated after the dismissal of the main petition filed for restitution of conjugal rights. A contention was raised before this Court  that after the dismissal of the main petition filed for restitution of conjugal rights, the order made in Interlocutory Application for interim alimony cannot be enforced. This court rightly negatived the said contention. In my considered opinion too, an amount which had fallen arrears can be recovered only by enforcing the order for interim alimony. This is very obvious from the provision contained in Section 28-A of The Hindu Marriages Act which provides enforcement of all decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction. Thus, an order for interim alimony is an executable order which can be executed like the civil court decree.  It was only on this ground, this court negatived the objection raised in respect of maintainability of the execution petition. Therefore, the judgement in R.Kuppusamy's case cited supra  has got no relevance to the issue involved in the present case at all.
   
    15. Secondly, the learned counsel for the petitioner relied on the judgement of this Court in M.Kanagaraj v. Jeeva, (2006) 4 MLJ 569. That was a case where the question before this Court was as to whether the execution proceeding can be maintained after the dismissal of the main case.  Relying on R.Kuppusamy's case cited supra, it was again held that such execution proceeding is maintainable. As I have already pointed out, the said judgement has also no relevance to the issue involved in the present case.
   
    16. Thirdly, the learned counsel for the petitioner relied on a judgement of Punjab and Haryana High Court in Smt. Malkan Rani v. Krishnan Kumar,  AIR 1961 Punjab 42. In that case, in para 9 the Punjab and Haryana High Court court has held as follows:- 
 
  |   9. When the Court is exercising this inherent power
| then it has to take into consideration all the
| circumstances of the case and then come to the
| conclusion whether the justice requires the
| proceedings, to be adjourned or to be stayed till
| payment is made  (vide Leavis v. Leavis, 1921 Pro.
| 299). In cases where the defaulter's spouse has
| initiated proceedings under the Hindu Marriage Act,
| stay of proceedings may not be adequate and other
| steps may have to be taken to put the indigent spouse
| in funds to prosecute the proceedings. When the
| defaulter gives reasonable ground for non-compliance
| with the order, then it may be sufficient merely to
| adjourn the proceedings to enable him (or her) to
| comply with the order. If, however, the defaulter
| wilfully neglects or wilfully refuses to comply with
| the order then I see no reason why contempt
| proceedings in accordance with law should not be taken
| against such a defaulter, even if ultimately these
| proceedings result in imprisonment because his conduct
| obstructs the judicial proceedings and prevents the
| trial to be equitably conducted.

    It is, however, not necessary to discuss the matter of contempt in this judgement at length because that stage his not yet arisen in the present case. The wife in the present case has merely made an application for stay of the proceedings till the husband complies with the order made under Section 24 of the Hindu Marriage Act.

    17. In my considered opinion, the said judgement also does not help the case of the petitioner. In that case, the request made was only to stay the proceedings for divorce until the entire arrears towards interim alimony as ordered under Section 24 of the Hindu Marriages Act was paid. In the said judgement, the Punjab and Haryana High Court has not at all held that failure to pay the interim alimony is a bar for the respondent/husband to initiate a fresh proceeding on a totally different grounds.
   
    18. Lastly, the learned counsel for the petitioner relied a judgement of Orissa High Court in Ghasiram Das v. Srimati Arundhati Das, AIR 1994 Orissa 15. In that case, in the very same proceedings since the arrears of interim alimony as ordered under Section 24 of The Hindu Marriages Act was not paid, the Court took the view that the pleadings of the defaulting party can be struck off. Here again, I would like to point out that it was in the same proceedings and not in a different proceeding. Similar view has been taken by the Mysore High Court in M.Ramachandra Rao v. M.S.Kowsalya, AIR 1969 Mysore 76.
   
    19. Thus, in none of the judgements relied on by the learned counsel for the petitioner it has been held by any of the High Courts including this court that the husband who is the defaulting party in the earlier proceedings in the matter of payment of interim alimony is debarred  from initiating a different matrimonial proceeding for a different relief altogether on different grounds. It has also not been held that the said subsequent proceedings filed by the defaulting party is liable to be dismissed or all defences available to him are liable to be struck off.
   
    20. On analysing the relevant provisions in the Hindu Marriages Act and the judgements relied on by the learned counsel for the petitioner and the submissions made on either side, I am of the view that for non payment of arrears of  interim alimony pendente lite, after the dismissal of the main case, when a fresh proceedings for a different relief is initiated by the defaulting party, the same is not liable either to be dismissed or to be struck off. In such view of the matter, the trial court was right in dismissing the petition in I.A.No.1204 of 2012 in H.M.O.P.No.247 of 2008. Thus, the revision fails and the same is liable only to be dismissed.
   
    21. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected MP is closed.
   
    22. After the order was dictated in open court, the learned counsel for  the respondent submitted that there may be a direction issued to the trial court to dispose of the original petition in HMOP No.247 of 2008 as expeditiously as possible within a time frame to be fixed by this Court.  The learned counsel for the respondent further submitted that the respondent is prepared to pay the entire arrears of interim maintenance, if any, as ordered in the earlier proceedings under Section 24 of the Hindu Marriages Act till the date of disposal of HMOP No.114 of 1999.  The said statement is recorded.
   
    23. In view of all the above, the trial court shall expedite the trial of the proceedings in HMOP No.247 of 2008 and dispose of the same within a period of six months from the date of receipt of a copy of this order.




kmk

To

1.    The Principal District Judge,
      Salem