ORDER
S.S. Subramani, J.
1. This revision is filed under Article 227 of the Constitution of India by the wife in O.P.No. 1328 of 1995, on the file of II Additional Family Judge, Chennai. Reason for filing this revision is only to bring to the notice of this Court the procedural illegality committed by the family court in passing an ex parte order of divorce.
2. A petition for divorce was filed by the respondent herein against the petitioner, alleging that she had been cruel to him, and due to that cruelty, it is impossible for him to continue the marital relationship.
3. A counter statement was filed by petitioner herein, denying the allegations and also setting out the reasons why there were differences of opinion between them.
4. According to her, there was a persistent demand by the husband for getting amounts from her house, which she refused. It is also said that the husband was a drunkard and made the family life impossible. She also alleged that even though she had given birth to three daughters, they were also not being properly maintained. Because of this cruelty, she had also moved the police and it is only in such circumstances, they had to live apart. She justified her action.
5. When the revision petition came up for admission, I ordered notice of motion and the operation of the order was also stayed. The revision itself was filed on the very next day i.e., 28.10.1998 (impugned order is dated 27.10.1998). On 2.11.1998, I passed an order suspending the operation of the order of the family court. Respondent, after receipt of notice, has filed counter-affidavit justifying the ex parte order. In the counter it is stated that the very restoration application was filed and allowed only when it was mutually agreed that the husband will pay the maintenance from the date of petition under Section 125, Crl.P.C. In the counter-affidavit also, the proceedings of the family court have been stated, but with some minor deviations. For example, it is said that on 27.10.1998, petitioner herein was absent when the same was called and, therefore, she was sent ex parte and evidence was granted. The fact that the petitioner herein was present when the matter was initially called, which is noted by the Family Court Judge, is not mentioned in the counter.
6. I have already extracted the facts which are necessary for the disposal of the case.
7. Now I will come to the proceedings of the court below. The petition was filed on 13.12.1995. It was taken on file on 18.12.1995, and the matter was posted to 25.1.1996, ordering notice. On 25.1.1996, petitioner herein (wife) entered appearance. For counter, the petition was adjourned to 26.3.1996. The further posting dates are 27.5.1986, 7.7.1996 and on all these days, both parties were present. On 7.7.1996, the family court attempted for a reconciliation.
The Judge has endorsed as follows:
Petitioner and respondent present. Reconciliation. Had discussion with them. This matter cannot be compromised. Adjourned to 26.7.1996.
The further postings were on 26.7.1996, 24.9.1996, 15.11.1996, 25.11.1996. On 25.11.1996, the Judge was on leave and, therefore, the matter was reposted to 30.1.1997 and thereafter, on 30.1.1997, it was adjourned to 12.5.97, 16.6.1997, 21.7.1997, 21.8.1997, 12.9.1997,23.10.1997,28.10.1997,19.11.1997, 24.12.1997, 2.2.1998 and 9.2.1998. On all these dates, both the parties were present. But the case was being adjourned by the family court on its own. On one or two occasions, petitioner had also to bring her children to the family court. That was also complied with. On 19.2.1998, the husband was absent, though the petitioner herein was present. The matter was again adjourned to 24.2.1998, and on that date also, the husband was absent and petitioner herein was present. The matter was adjourned to 27.2.1998. On 27.2.1998, both the parties were present, and the matter was adjourned to 24.3.1998. On 24.3.1998, petitioner herein was absent, and the case was adjourned to 30.4.1998. On 30.4.1998, both the parties were present. Thereafter the postings were on 16.6.1998, 19.6.1998, 13.7.1998. On 13.7.1998, the husband was absent, and the petitioner herein was present. The husband's name was called. There was no representation for him. Therefore, the petition was dismissed for default.
8. Immediately, the husband filed I.A.No. 618 of 1998, to restore the petition to file. The same was allowed and the case was taken up on 7.8.1998. Both parties were present. The matter was adjourned to 22.9.1998. Though, on 22.9.1998, both the parties were present, it was represented that both of them were not ready. Hence the matter was adjourned to 26.10.1998. On 26.10.1998, the family court has recorded the proceedings as follows:
The case was called in the morning in open court and passed over for enquiry. The case was again called in the Chambers at 11.30 a.m. the respondent represented that she had filed two applications, one for return of articles and the other for directing the petitioner to pay the arrears in M.C. Both the petitions have been returned since the case is posted for enquiry. It was again passed over. When the case was called at 2. 30 p.m., One Mrs. Chitra Sampath, said to be assisting the respondent behaved in an unruly manner and she was very discourteous to the court. She did not allow the court to record the petitioner's evidence and she forcibly took the respondent along with her stating that the respondent can be set ex parte and she abruptly walked out of the chambers.
The case was adjourned for enquiry finally 27.10.1998. Petitioner and respondent were present. At 12.00 noon, respondent was absent when the matter was called in the chambers. She was set ex parte. Evidence was recorded.
9. On 27.10.1998, the family court has recorded thus:
Respondents absent, when called in the chambers. Set ex parte, evidence recorded. Petitioner is present, Respondent is set ex parte. Petitioner is examined as P. W.1. Ex.P-1 to P-11 marked. Perused the records. The records indicate that the respondent has given several false complaints to the police against the petitioner and he was put to great mental agony. She has often taunted the petitioner. The respondent had filed O.P.No. 191 of 1995 against the petitioner on the ground of cruelty and that he is suffering from virulent form of leprosy, and subsequently the petition was dismissed as not proved. Thus the respondent has treated the petitioner with cruelty. I am satisfied that the petitioner is not taking advantage of his own wrong or disability on getting this relief. She has not condoned the act of the respondent. There is no improper delay in filing this petition. There is no collusion between the parties. There is no legal bar under Section 23 of the Hindu Marriage Act in granting the relief. In the result, this petition is allowed and the marriage which took place between the petitioner and the respondent on 17.8.1989 is dissolved by a decree of divorce on the ground of cruelty under Section 13(1)(1a) of the Hindu Marriage Act.
10. Why I have extracted the proceedings of the court below is, only to enter a finding whether the petitioner herein can be said as indifferent in taking part in the proceedings. It could be seen from the notes paper that they were 33 postings, and even on the day on which the petitioner herein was declared ex parte, she was present in court in the morning when the matter was called. Only when the matter was again called at 12.00 noon, she could not be present. According to her, she wanted to bring her advocate, and it was during this time, the case was called.
11. It must also be seen that the husband was absent on one or two occasions, and the application itself was dismissed for default. Without any objection, the same was restored.
12. 1 have already extracted the proceedings dated 26.10.1998, wherein the petitioner herein represented that she has filed two petitions, one to get arrears of maintenance, and another for stay of proceedings till then. In this connection, it must be noted that the petitioner had to file an application under Section 125 of the Criminal Procedure Code before the family court and with the consent of parties, the husband had agreed to pay a sum of Rs. 1,000 per mensem as maintenance, and, on the date of petition, i.e., on 26.10.1998, nearly Rs. 45,000 was due to the wife. Except a paltry sum of Rs. 1,000 no other amount was paid by the husband. The wife had to maintain herself and her three children without receiving any amount from the husband. It is in these circumstances, petitioner herein made a representation before the family court that the husband must be compelled to pay the maintenance. By that time, more than 32 postings were over, and on every occasion the petitioner herein had to attend the family court, wait for hours together and thereafter return without any fruitful result, but only with an intimation of adjournment of her case. In such a pitiable situation, when the petitioner herein filed an application before the family court seeking its assistance for getting the arrears of maintenance, the family court was not justified in returning the same on the ground that the case is posted for enquiry.
13. It is at this juncture, some of the observations made by the family court in its proceedings dated 26.10.1998 require consideration. It was on 23.10.1998, an application was filed under Section 24 of the Hindu Marriage Act and also an application for stay of the proceedings.
14. It may also be stated that on 26.10.1998, when this petition under Section 24 was presented, the same was returned and the same was immediately represented. Mrs. Chitra Sampath whose name is referred to by the Family Court Judge in the proceedings dated 26.10.1998 is the counsel for the revision petitioner herein. She represented that even before 12.00 noon, when the case was called, petition was represented. After curing the defects, the petition was also re-presented. In fact, the petition was filed on 23.10.1998, and, on the date when the case was called, the application under Section 24 of the Hindu Marriage Act and also the petition under Section 151, C.P.C. were before the Family Court. Learned Counsel for revision petitioner submitted that on more than 30 occasions, the wife had to be present in court, and on certain occasions she had to bring her children also to court. Though there was an order passed directing the husband to pay maintenance of Rs. 1,000 per mensem in the petition filed by the wife under Section 125, Crl.P.C., he never cared to pay the amount. In such a situation asking the wife who was in a state of starvation, to 'proceed with the enquiry is not the proper way of dealing with such cases. When the husband did not pay the maintenance in spite of the agreement, she was compelled to file the petition under Section 24 of the Hindu Marriage Apt. When this fact was brought to the notice of the learned Judge and the difficulties of her client and the children were explained, the Family Court Judge also did not behave as a court. Learned Counsel submitted that technicalities of a civil court should not be made applicable to family court where parties appear in person to prosecute their respective case. In such a case, a little more leniency will have to be shown. The family court is dealing with cases of human problem, and not a property dispute. It is a life and death problem of a family and, therefore, the approach should be a little more humane. It was this fact that was brought to the notice of the Family Court Judge, which she did not like. Learned Counsel for revision petitioner took objection to the observation made in the proceedings by the learned Judge that she behaved in an unruly manner. Expressing the feelings of a client, is the duty of a counsel. Such expressions should not be misunderstood as unruly behaviour. The statement in the order that the counsel behaved in an unruly manner, is to be expunged, is the submission made by learned Counsel for revision petitioner.
15. She also submitted that when the Family Court Judge made such an observation on 26.10.1998, she did not want to appear before the learned Judge again, and on 27.10.1998, petitioner herein really wanted her again to represent the matter, but she was reluctant to take up her cause. So, the petitioner also wanted to engage another counsel for her assistance. That is why, on 27.10.1998 even though the petitioner herein was present in the morning when the matter was called initially, she could not be present when the matter was called at 12.00 Noon, because she could not fetch a counsel in time. Therefore, the failure to be present when called at 12.00 noon was not intentional, but it was only due to her inability. The previous day's proceedings was taken by the family court to set the petitioner herein ex parte and also to pass an order forthwith.
16. After hearing learned Counsel for both parties, I feel that this is a case where the impugned order will have to be set aside since according to me the Family Court Judge has violated all settled legal principles.
17. In the family court, the technicalities of Rules of Evidence are not made applicable. Evidence which cannot be let in or which is disallowed by a civil court, is also allowed to be adduced before the family court. For adoption such a procedure, there are reasons. The family court is dealing with a Family dispute, where the procedural technicalities should not stand in the way for arriving at a just conclusion. The court is approaching the problem in an entirely different manner, and not like a pure Court of Law.
18. In this case, the husband is an Artiste in Doordarshan, and he is getting a good income of not less than a five digit salary. The wife and her three daughters are residing together with no source of income. When she has to fight a litigation and when she has to appear before court every now and then, naturally, her financial means also will have to be considered. When she has no source of income, she can only request the family court to help her by compelling the husband to pay the alimony. She moved an application under Section 125, Crl.P.C. and an order was also passed on agreement that the husband will pay Rs. 1,000 (thousand) as monthly maintenance from the date of that application. Except for a month's payment, no other amount was paid, and by the time she filed the application under Section 24 of the Hindu Marriage Act on 26.10.1998, nearly Rs. 45,000 was due.
19. It is because an order by mutual agreement had been passed in the petition under Section 125, Crl.P.C. and since she bona fide believed that the husband will act according to his promise, she did not file the application under Section 24, Hindu Marriage Act, earlier. In fact, it was on the basis of that arrangement, even the application was allowed to be restored. Without paying that amount, when the husband thought of proceeding with the trial, she understood that it was done only with the mala fide intention of defeating or delaying the payment of arrears of maintenance due to her. Therefore, she filed the petition under Section 24 of the Hindu Marriage Act. When that is so, I do not think that the family court was justified in returning the same on the ground that the case is taken up for trial. No court says that a starving wife should present herself with her children and take up the trial according to the choice of the husband. The family court also should not stretch a helping hand to such persons unless they come with bona fides.
20. The very meaning of the word 'alimony' is 'support to the wife'. It is not defined in any Act. The object behind the provisions as to alimony pendente lite in the Hindu Marriage Act is that a wife or husband who has no independent income, sufficient for her or his support or enough to meet the necessary legal expenses, should not be handicapped. The origin of the expression 'alimony' lies in Latin 'alimonia' meaning sustenance, and means therefore, the sustenance or support by her divorced husband and stems from the common law right of the wife to support by her husband. Alimony means the allowances which husband or wife by court order pays to other spouse for maintenance while they are separated or after they are divorced (permanent alimony) or temporarily, pending a suit for divorce (pendente lite).
21. A.N. Saha in his book (Marriage & Divorce', Fifth Edition (1996) has stated that the pre-existing order of maintenance by a criminal court does not oust the jurisdiction of a Matrimonial Court to grant maintenance pendente lite. If the amount received by the petitioning spouse is sufficient for her support, the court is justified in refusing maintenance pendente lite under Section 24, Hindu Marriage Act. Due to poverty and hunger, if the wife is not in a position to defend her case properly, such a weak position of the wife should not be exploited by the husband, and this is the main reason for introducing Section 24 in the Hindu Marriage Act. A litigation before the family court must be between parties of equal footing. A starving wife cannot be compelled to face the trial. Basic needs like education of children, and food for them will have to be provided, and only after satisfying the basic needs, the wife could be compelled to plead her case. If the husband has committed breach of his promise and when that is reminded to the court by filing an application under Section 24 of the Hindu Marriage Act, the court should not have simply returned it on the ground that the case is posted for enquiry. For more than 30 postings, the court did not show any eagerness or anxiety, to get on with the matter. But when the difficulty of the wife was brought to the notice of the court, it took a different stand. The apprehension of the wife, petitioner herein, is genuine, namely, that the Family Court is not doing the justice which is expected of it. The very purpose of establishing a family Court is to have a different atmosphere in regard to settlement of family problems. In most of the cases, parties are likely to say many matters out of the way. But they act so only out of their anxiety and, anguish due to difficulties in the family. They may also do not know the procedures in a court of law. In such circumstances, the approach of the family court should not be that of a master with an iron hand. The family court is expected to understand the problems and create a good atmosphere and thereby instill faith and confidence in the mind of the parties. It is here the family court has miserably failed. It has been settled in various cases that without paying the alimony, the husband is not entitled to proceed with the case. In this case, there is an order under Section 125, Crl.P.C. which the husband should have obeyed. During the 32 postings, not a pie has been paid towards litigation expenses should not the family court consider these aspects before making a comment on the counsel and also before returning the application under Section 24 of the Hindu Marriage Act? When I say this, it should not be understood that I have justified the behaviours of the counsel before the Family Court The counsel also should behave politely and due respect should be shown to court, so that decency and decorum could be maintained. The image of a court of law could never be allowed to be tarnished in any way The family court also deserves all the respects of a court of law, either from the counsel or from the party.
22. According to me, the proceedings on 26.10.1998 has materially affected the decision of the case. The family court has not acted in accordance with law and consequently the person affected is the party. Even if the Counsel had misbehaved as stated by the family court, the court should bear in mind that it is doing justice to the party and not to the counsel. In my opinion, the Family Court has taken the proceedings on 26.10.1998 personally and has done a great injustice to the petitioner in this case.
23. On 27.10.1998, when the case was called, the petitions under Section 24 of the Hindu Marriage Act and Section 151, C.P.C. were also on the file of the Family Court. Without passing any order on those Applications, the Family Court ought not to have proceeded with the enquiry. It has not passed any order on the same. That itself is sufficient to set aside the impugned order. In the application under Section 24 of the Hindu Marriage Act, petitioner herein has stated why she needs alimony and the circumstances which compelled her to file such an application. Without even looking into those applications, petitioner herein was set ex parte, and the impugned decree was passed.
24. In Meena Deshpande v. Prakash Shrinivas Deshpande : AIR1983Bom409 , it has been held thus:.Without deciding such an application, it is indeed difficult to permit the passing of such ex parte judgment only because the written statement is not filed, particularly when the allegations on the basis of which relief of nullity and divorce are sought are serious enough, and before they are accepted, required sufficient and adequate proof. In such matters, looking to the policy of law, it must be observed that the proceedings under Section 24 of the Act have an important bearing with regard to the rights of the defending spouse. Not only the provisions of Section 24 of the Act permit grant of maintenance pendente lite, but also it permits the court to make an order with regard to necessary expenses of the proceedings. In a given case without provision for the necessary expenses of the proceedings, it would be impracticable to insist upon the defending spouse even to file a written statement. The trial court, which was moved by filing the application, was bound to decide the application with regard to the maintenance and the expenses. There is thus, obvious failure to follow the provisions of Section 24 of the Act, and that should be enough to set aside the judgment under appeal and remit the matter back to the trial court directing it to consider the application filed At Ex. 11 supported by Ex. 12 and then to proceed with the enquiry in the petition according to law.
[Italics supplied]
25. In Mulla's Hindu Law - 17th Edition (1998) Commenting on Section 24 of the Hindu Marriage Act, the learned Author has said thus (at page 185):
The trial court should not postpone its decision on the application for interim maintenance and costs till disposal of the main issue in the substantive matter. The court should not pass any decree without deciding any application for maintenance under this section that may be pending before the court.
26. As held in Sudeep Chaudhary v. Radha Chaudhary (1977) 1 S.C.C. 286, whatever amount is paid under Section 24 of the Hindu Marriage Act could be adjusted while implementing the order under Section 125, Crl.P.C. In that case, the Honourable Supreme Court held that the amount awarded for maintenance was adjustable against the amount awarded in matrimonial proceedings and was not to be given over and above the same.
27. Once it is found that on the date when the petitioner herein was set ex parte, her application for getting interim alimony was also pending, without disposing of the same, the court cannot get jurisdiction to pass a decree of divorce. The impugned order is, therefore, illegal, While passing the decree, the court below has committed an illegality and the husband has also over-reached the compromise and has really committed fraud in not paying the amount which he had agreed to pay. The court below, by passing an ex parte decree in spite of the fact that an application under Section 24 of the Hindu Marriage Act is pending before it in which these facts are stated, has rendered itself a party to such an illegality. A court may pass a wrong decree or take a wrong decision. But knowingly when the pendency of the application was brought to the notice of the court, passing an ex parte decree is not proper. The family court has certain exceptions in following the procedures, which an ordinary civil court does not have, since it deals with human problems.
28. Now, coming to the observations made by the Family Court Judge regarding the counsel for petitioner herein, it seems to be a little more exaggerated. In the earlier portion of this order, I have remarked as to how both a Judge and counsel should behave in a court of law. Therefore, the observations made by the Family Court Judge in the proceedings dated 26.10.1998 shall stand expunged.
29. In the result, for the reasons stated above, the decree of the court below is set aside. Applications filed by the petitioner herein and rejected by the family court shall stand restored to the file of the family court.
30. At this juncture, it may also be mentioned that both parties submitted before me that the proceedings may not be continued in the same family court. Therefore, with the consent of both parties, (F.C.) O.P.No. 1328 of 1995 will stand transferred to the Principal Family Court, Madras. Connected original records which I have called for also will be sent to that court.
31. I direct the husband, i.e., respondent herein, to pay the entire amount that is due as per the compromise, within three weeks from to-day. Under no circumstances, the period fixed shall be extended. Such payment should include the maintenance amount due for December, 1998 also. Without making such payment, he is not entitled to prosecute his application for divorce. 32. On payment of the entire amount as stipulated above, the family court shall take into consideration the application filed by the wife under Section 24 of the Hindu Marriage Act and only after passing orders regarding the interim alimony and litigation expenses, and also compliance of the conditions mentioned above, the main case for divorce shall be taken up for trial. If the husband commits any default in payment of the sums as, stipulated above, the trial shall not be proceeded. If there is any failure on the part of the husband in complying with any of the directions given above, the family court shall pass appropriate orders in the light of the observations made above. While dealing with the trial of family disputes, it is advisable that the Family Court approaches the problems with a human touch and without sticking on to technicalities, and also without identifying itself as a Presiding Judge, taking into consideration the practical difficulties of the parties. The Civil Revision Petition is allowed as indicated above. No costs. Connected C.M.P. for stay s closed.