VIJENDRA B SINGH Vs. UMA VIJENDRA SINGH

JUDGEMENT

(1.) THE submissions of learned counsel appearing for the parties were heard on the earlier date. Parties were put to notice that the petition will be finally decided at the stage of admission. With a view to appreciate the submissions made by learned counsel for the parties, it will be necessary to consider the facts of the case. THE petitioner is the husband and the respondent is the wife. THEy got married on 22nd April, 1996. In the year 1998 the respondent- wife filed a petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the said Act"). In the said petition, a decree of restitution of conjugal rights was passed on 3rd October, 2002. As the said decree remained unexecuted, the petitioner-husband filed a petition for divorce under section 13(l-A)(ii) of the said Act for a decree of divorce. THE learned Judge of the Family Court dismissed the said petition for divorce by judgment and decree dated 23rd August, 2006. A Family Court appeal preferred by the petitioner for challenging the said decree is pending in this Court. THE said appeal has been admitted. An application for execution was made by the respondent-wife for execution of the decree for restitution of the conjugal rights. By the impugned order, the learned Judge of the Family Court directed that the petitioner-husband shall obey the decree of restitution of conjugal rights within a period of one month from the date of impugned order i.e. 6th November, 2009. THE learned Judge directed that upon failure of the petitioner to obey the said decree within the time prescribed under the said order, he shall pay an amount of Rs. 20,000/- p.m. to the respondent-decree holder from the date of passing the decree of restitution of the conjugal rights.

(2.) THE learned counsel appearing for the petitioner has made detailed submissions. He submitted that while passing the decree, the Court had not fixed any time limit for compliance of the decree. He submitted that the impugned order amounts to going beyond the decree and adding to the decree something which is not permissible in law. He submitted that the notice under Rule 22 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") was not served and, therefore, the impugned order has been vitiated. He submitted that the time for complying with the decree of restitution of conjugal rights could have been fixed only by the Court which passed the decree either at the time of passing the decree or any time afterwards but the Executing Court had no jurisdiction to pass an order fixing an outer limit for complying with the decree of restitution of conjugal rights. He submitted that the Executing Court was powerless to pass an order fixing the period of one month for compliance with the decree. He submitted that the Executing Court has added a direction in the decree for restitution of the conjugal rights which is completely prohibited. He submitted that after the petitioner had filed the petition under section 13(1-A)(ii) of the said Act on the basis of the decree for restitution of conjugal rights, the said decree ceases to be executable. He submitted that in execution of a decree which was not executable, no such direction could have been issued. Without prejudice to the aforesaid contentions, he submitted that the Executing Court proceeded on assumption that what was required to be fixed was the maintenance amount and the payment contemplated by sub-rule (2) of Rule 33 of Order XXI of the said Code cannot be equated with maintenance payable under the said Act. He submitted that in any case, such a drastic order could have been passed only on the basis of a finding that there was wilful disobedience of the decree on the part of the petitioner-husband and no such finding has been recorded. He pointed out that an application for execution was filed earlier which was not pressed by the respondent and therefore, a fresh application was not maintainable. THE learned counsel for the respondents supported the impugned judgment and order. He submitted that the Executing Court is the same Court who has passed the decree of restitution of conjugal rights. He submitted that the learned Judge had jurisdiction to pass an order in exercise of powers under Rule 33 of Order XXI of the said Code. He submitted that periodical payment referred to in sub-rule (2) of Rule 33 of Order XXI of the said Code is a payment by way of penalty and not by way of maintenance. He submitted that the tests which are applicable Tor fixing the amount of interim alimony or maintenance will not apply in the present case. He submitted that the learned Trial Judge was justified in fixing the amount of Rs. 20,000/- considering the income of the petitioner. He pointed out that even the petition for divorce filed by the petitioner-husband has been dismissed by holding that the petitioner was not ready and willing to co-habit and, therefore, power under Rule 33 of Order XLII of the said Code has been rightly exercised by the trial Court.

(3.) AS far as the date from which the periodical payment is payable, sub- rule (2) of Rule 33 confers discretion on the Court. It is not necessary that in every case periodical payment shall be ordered to be paid from the date of passing the decree of restitution of conjugal rights or from the date on which the period provided for compliance comes to an end. In a given case the direction under sub-rule (1) of Rule 33 may be issued by the Court after a lapse of considerable time from the date of decree as the rule provides that such a direction can be issued at time after passing a decree. In such a case, it may be unjust to direct that periodical payment shall be made from the date of passing the decree.