NARAYANA NADAR Vs. JAYAKODI AMMAL

JUDGEMENT

(1.) THIS Civil Revision Petition, at the instance of the husband, is directed against the order of the Court below in I.A.No.176 of 1986 in H.M.O.P.No.30 of 1985, Sub Court, Tenkasi, striking out the defence of the petitioner, for noncompliance with an order dated 23-9-1986 passed In IANo.19 of 1986 for payment of interim alimony and litigation expenses to the respondent. On 1.7.1985, the respondent herein filed H.M.O.P.No.30 of 1985, Sub Court, Tenkasi, praying for the relief of restitution of conjugal rights. Stating that she had no independent income for her support and maintenance and also to meet the expenses of the proceedings, she filed I.A.No.19 of 1986 praying that the petitioner should be directed to pay interim alimony of Rs.300 p.m.and Rs500 towards litigation expenses. That application was resisted by the petitioner on certain grounds, which need not be noticed in extenso at this stage. Suffice it to say that on 23-9-1986, the Sub Court, Tenkasi, passed an order directing the petitioner to pay a sum of Rs.200 p.m. as interim alimony from the date of main application and a sum of Rs.300 towards the litigation expenses. Aggrieved by this, the petitioner preferred C.R.P.NO. 975 of 1987 and while disposing of that C.R.P., Sathiadev. J. stated: "It is obligatory on the part of the petitioner herein to continue to pay alimony at the rate of Rs.200 per month. If it results in excess payment, it can be adjusted later. As regards litigation expenses, there is no serious dispute on this aspect. "It is thus seen that the direction of the Court below to pay interim alimony at the rate of Rs.200 per month and the litigation expenses of Rs.300 had been maintained and upheld. Even so, the matter was remitted - a purposeless and futile exercise and the remit order is not only unintellizible, but exfacie bears the stamp of total absence of clarity and lack of appreciation of the circumstances warrenting or justifying a remand. It would be desirable to bear in mind that even this Court should not readily pass judicial orders remitting matters unnecessarily pending for a long time, causing great inconvenience to the weaker of the spouses, and serving absolutely no purpose. The respondent herein filed I.A.No.176 of 1986 under Sec.151, Code of Civil Procedure, bringing it to the notice of the Court that the petitioner had not complied with the order dated 23-9-1986, and that such non-compliance was deliberate and contumacious, deserving the striking off of the defence of the petitioner herein in H.M.O.P.No.30 of 1985. That application was resisted by the petitioner on the ground that the remedy of the respondent herein, if any ,was to execute the order in I.A.No19of 1986 and not to seek the striking off of the defence of the petitioner. It is significant that it was not the case of the petitioner that payments had been made by him pursuant to the order in I.A.No.19 of 1986 or that the disobedience of the order, was not deliberate or contumacious. The court below found that the petitioner had not deposited any amount either pursuant to the order in I.A.No.19 of 1986 or C.R.P.975 of 1987, and, in that view, struck off the defence of the petitioner and allowed die application filed by the respondent herein praying for the relief of conjugal rights in H.M.O.P.NO. 30 of 1985. It is the correctness of this that is questioned in this civil revision petition.

(2.) THE principal question that arises for consideration is, whether the court below was right in striking off the defence for non-compliance with the order in I.A.No. 19 of 1986 directing the petitioner herein to pay interim alimony and also litigation expenses, to the respondent herein. Earlier, it has been noticed that it is not the case of the petitioner that any payment was made and it has, therefore, to be taken that the Court below was right in holding that no payment at all had been made by the petitioner pursuant to the order passed in I A.No.19 of 1986 or C.R.P. No.975 of 1987. THE objection raised by the petitioner is that orders for payment of interim alimony and litigation expenses, should, under section 28-A of theHindu Marriage Act (hereinafter referred to as the Act), be enforced as decrees of Court made in the exercise of its original civil jurisdiction and that without doing so, the respondent cannot be permitted to seek the relief of striking out of the defence. THE purpose behind section 24 of the Act is that parties to a matrimonial causes should not take undue and unfair advantage of a superior financial capacity, to defeat the rightful claims of a weeker party. THE proceedings under S.24 of the Act serve a limited purpose, Le, during the pendency of the proceedings to enable the weaker party to establish rights without being in any manner hindered in that attempt by lack of financial support. It is true that S.28-A of the Act provides for the enforcement of orders of execution; but the process of such execution is along and arduous one and if execution is to be considered the only method of enforcement, the matrimonial proceedings have to be stayed till the execution is completed. To put it differently, to secure the benefit of an order under S.24 of the Act by resort to the process of execution, the parties may have to endure, in some cases at least, an endless wait. THE enforcement by execution would not also further the objects of the Act. Matrimonial proceedings should be dealt with expeditiously and relief afforded to the parties. That is why a special provision is made under Sec.21-B of the Act to the effect that proceedings should be tried as expeditiously as possible and concluded within six months from the date of service of notice and that the trial of the proceedings should also be continued day-to-day until its conclusion. A further provision is also made that an appeal should also be heard as expeditiously as possible and should be concluded within three months of the service of notice of appeal. Sec.21-B thus clearly gives expression to the need for speedy and expeditious disposal of matrimonial causes. To drive a party to resort to execution proceedings for the purpose of realising the interim alimony and litigation expenses would be obviously to prolong the proceedings, resulting in the denial of justice. THE initiation of other kinds of proceedings, if any, for purposes of enforcing the order, would also be subject to enormous delay and result, in the failure of justice. It is in this background of the avowed policy of speedy disposal of matrimonial matters and giving relief to the parties and the provisions amde in that regard in the Act to secure that object, the question of the power to strike out the defence has to be considered. 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 Sec.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 the 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. In this case, it is seen that the petitioner, while accepting that he had not made any payment whatever to the respondent pursuant to the order passed in I.A.No19of 1986, had also not denied that such disobedience was deliberate and contumacious. Further, the petitioner had not even stated that given some time, he would pay the amounts to the respondent. THE direction for payment of interim alimony and litigation expenses to a finacially weaker spouse during the pendency of the matrimonial proceedings is only to erase the financial inequality and it is common knowledge that the path of execution is not smooth. In the context of the prevailing circumstances in our society, the payment of interim alimony and litigation expenses, pendente lite to a spouse, who is financially weaker that the other, with a view to enable him or her to conduct the proceedings in a matrimonial cause and secure speedy justice, should be regarded as a sine qua non of justice and the argument that resort to execution proceedings can be had against the defaulting spouse or other proceedings can be taken, cannot be countenanced, especially when enforcement of such orders otherwise than by execution, is neither prohibited or excluded by Sec.28-A of the Act. Thus, on a careful consideration of the facts and the circumstances and also the relevants statutory provisions, the court below cannot be stated to have committed any error in striking out the defence of the petitioner herein.THE Civil Revision Petition is, therefore, dismissed with costs.