Shrimati Sikha Gorai Vs. Subodh Chandra Gorai - Court Judgment

S.K. Mukherjee, J.

1. The opposite party-husband instituted a matrimonial suit under Section 13 of the Hindu Marriage Act, 1955 for dissolution of the marriage solemnized between the parties on June 11, 1997 as per Hindu rights and customs.

2. In the wedlock a male child has been born and the child is now aged about four years. The male child is in the custody of the mother.

3. The wife-petitioner in the said suit filed an application under Section 24 of the said Act of 1995 claiming alimony pendente lite and expenses of the proceedings. The learned Additional District Judge, First Court at Asansol. District: Burdwan allowed the said application in part and directed the opposite party-husband to pay Rs. 1000/- (Rupees one thousand) only to the petitioner-wife towards alimony pendente lite for herself and the minor son with effect from the date of filing of the said application under Section 24 of the Hindu Marriage Act, 1955. The learned judge assessed the arrears of maintenance at Rs. 9000/- (Rupees nine thousand) only and directed the opposite party-husband to pay the said sum by eighteen equal instalments at the rate of Rs. 500/- (Rupees five hundred) only per month along with the current alimony. The learned judge, also directed the opposite party-husband to pay Rs. 2000/- (Rupees two thousand) only towards expenses of the proceedings.

4. The suit has been transferred to the Court of the learned Additional District Judge, First Track Court at Asansol and has been renumbered as Matrimonial Suit No. 4 of 2002 of the said Court.

5. On June 29, 2002 the wife-petitioner filed an application in the trial court praying for stray of all further proceedings in the said suit alleging that the opposite party-husband has not complied with the order passed on the application under Section 24 of the Hindu Marriage Act, 1955.

6. Mr. H. Singh, learned Additional District Judge, First Track Court at Asansol by order No. 20 dated August 28, 2002 rejected the said application for stay on contest without, however, any order as to costs and directed the petitioner to file her written statement on September 24, 2002 failing which, it was ordered, the suit might be heard ex parte. The learned trial judge in the order impugned referred to a decision of the Supreme Court reported in AIR 1963 and held: But, this ruling of the year 1963 ceased to be a good law after amendment of the H.M. Act, 1955 in the year 1976 by introduction of Section 21B which requires that petition under the Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months. Therefore, in case the proceedings are stayed, expeditious disposal of the suit as required by law would be the first casualty. No Court in my opinion can act against the spirit of law. Therefore, the respondent is now left with the only option to realize maintenance and costs of litigation etc. only by way of execution proceedings'.

7. Being aggrieved the wife-petitioner has come up with this application under Article 227 of the Constitution of India along with an application under Section 5 of the Limitation Act, 1963 for condonation of delay in moving the said revisional application.

8. The petitioner has filed an affidavit of service and it appears that the opposite party and his learned advocate in the court below have been duly served with the copies of the said applications. In spite of service none appears to oppose the said application.

9. Upon going through the uncontroverted averments made in the application for condonation of delay, I am satisfied that the petitioner was prevented by sufficient cause from moving the application under Article 227 of the Constitution of India in times. Accordingly the delay in filing the application under Article 227 of the Constitution of India is condoned.

10. Wife petitioner contends that the husband-opposite party has not complied with the order passed by the Court on the said application under Section 24 of the said Act of 1955. None appears on behalf of the opposite party to controvert the said allegation.

11. The concept of enforcement of decrees and order passed in connection with the proceedings under the Hindu Marriage Act, 1955 was not foreign in the Hindu Marriage Act. 1955 as it stood before the amendment of the said Act by the Marriage Laws (Amendment) Act, 1976.

12. Section 28 of the Hindu Marriage Act, 1955 as it stood before the said amendment, was as under:

28. Appeal from decrees and orders.--All decrees and orders made by the Court in any proceeding under this Act shall be enforced in the manner as the decrees and orders of the Court made in the exercise of the original civil Jurisdiction are enforced, and may be appealed from under any law for the time being in force:

Provided that there shall be no appeal on the subject of cost only.

13. Under Section 19 of the Marriage Laws (Amendment) Act, 1976, the existing Section 28 of the Hindu Marriage Act, 1955, has been substituted by inserting two sections, namely, Sections 28 and 28A.

Section 28A runs as under:

'28A. Enforcement of decrees and orders.--All decrees and order made by the Court in any proceeding under this Act shall be enforced in the liker manner as the decrees and orders of the Court made in the exercise of its original Civil jurisdiction for the time being are enforced'.

14. In the case of Shrimati Anita Karmokar v. Birendra Chandra Karmokar reported in : AIR1962Cal88 , Binayak Nath Banerjee, J. observed 'it was strongly contended before me that the wife petitioner could enforce the order made under Section 24 of the Act only by way of execution of the order and that the husband opposite party could not be compelled to pay by ordering stay of the proceeding for restitution of his conjugal rights with the petitioner. The path of execution is not an easy going high way and provides no short-cuts to the destination. In the case of General Manager of Raj Durbhanga v. Ramput Singh, 14 Moor Indian Appeals 605 (612) the Privy Council very rightly observed 'Difficulties of a litigant in India begin when he has obtained a decree'. To relegate one to that difficult and risky path-way, even for realization of the litigation expenses, without staying the hearing of the matrimonial suit, may result in the suit itself being heard out before the expenses may be realized by process of execution. Therefore, to hold that the 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.'

15. A Division Bench of this Court in the case of Uday Kumar Paul v. Shrimati Mira Paid reported in 1993(2) Cal LJ 437 held 'Section 24 of the Hindu Marriage Act vests the defendant-spouse with a special right to apply for maintenance pendente lite and litigation expenses in a matrimonial suit. The statute gives this right for the protection of the spouse concerned and to enable her/him to survive and contest the litigation. It has a social implication and justice demands that Courts should be astute in preserving the same in the absence of compelling circumstances beyond its control. The statute, also, as the language of the section indicates, contemplates the passing of an order in terms of section, for maintenance pendente lite or litigation expenses, during the proceeding and thus implies the disposal of the application in the suit itself. It is well known, too, that Courts exist for doing justice and securing the ends of justice and, necessarily, therefore, for that purpose, it is entitled to arrange its business in a manner, which will sub-serve that purpose and promote the achievement of that object.

16. In Rayden and Jackson On Divorce (15th edition, 1988) it has been stated that 'if a husband who has been ordered to pay maintenance pending suit or costs to his wife neglects to do so, she may apply to have the petition dismissed, or to have the suit stayed.'

17. Section 21B of the Hindu Marriage Act, 1955 was inserted by the Marriage Laws (Amendment) Act of 1976 to make special provision relating to trial and disposal of the petitions Sunder the Hindu Marriage Act, 1955. The said section was undoubtedly intended to ensure expeditious disposal of proceedings, but it cannot be said that the plaintiff-husband can insist upon for expeditious disposal of his suit for divorce when he has admittedly failed to comply with the order directing him to pay alimony pendente lite and expenses of the proceedings. If such interpretation is to be accepted the purpose of insertion of Section 24 of the Hindu Marriage Act, 1955 will be nugatory and ineffective.

18. The learned District Judge, therefore, applied wrong legal tests in considering the prayer for stay of the suit made by the wife-petitioner and illegally rejected the said prayer on a misconception of law on the subject.

19. The learned judge in the order impugned referred to the decision in the case of Madamanchi Ramappa and Anr. v. Muthaluru Bojjappa reported in : [1964]2SCR673 and observed that the said decision ceased to be good law in view of the amendment of the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976. The said decision is an authority on the scope of interference by the High Court in second appeal under Section 100 of the Code of Civil Procedure. I fail to comprehend as to why the learned trial judge, while considering an application for stay filed by the wife in a matrimonial suit on the allegation of non-compliance of an order passed on an application under Section 24 of the Hindu Marriage Act, 1955, has referred to the said decision and as to why he has said that the same has ceased to be a good law. It seems that the learned judge had no occasion to go through the said decision.

20. The learned Additional District Judge, therefore, applied wrong legal tests in considering the prayer for stay of the suit made by the wife-petitioner and illegally rejected the said prayer on a misconception of law on the subject.

21. I, therefore, set aside the order impugned and allow the prayer made by the wife for stay of the suit. I direct that there will be stay of all further proceedings in Matrimonial Suit No. 4 of 2002 pending in the court of the learned Additional District Judge, First Track Court at Asansol, District: Burdwan till all the payments are made by the husband to the wife in terms of the order No. 12 dated April 5, 2002.

22. The revisional application is, thus allowed without, however, any order as to costs.

23. The learned Registrar General is requested to send a copy of this order to the learned judge concerned wherever he is posted now at the cost of the office forthwith for his future guidance.