DIPAK GHOSH Vs. RINA MAJUMDAR

JUDGEMENT

(1.) THE impugned order striking out the defence of the petitioner-husband before us, who is the respondent in a matrimonial proceeding in the court below, on the ground of his failure to pay alimony pendente lite and expenses of the proceeding under Section 36 of the special Marriage Act to the wife-respondent before us, who is the petitioner in that matrimonial proceeding in the court below, has been very strongly assailed as having been passed in illegal assumption or, at any rate, in illegal and materially irregular exercise of jurisdiction. The matrimonial proceeding in the court below has been instituted by the respondent against the petitioner for a decree for dissolution, or alternatively for a decree of nullity of marriage and on an application being made under Section 36 of the Special Marriage Act by the respondent as the petitioner in that proceeding, an order was made directing the respondent in that case and the petitioner before is to pay alimony as well as cost of litigation. That order appears to have been made exparte and the petitioner-husband attempted to have the same set aside on an application purported to be under Sectionl51 of the Code of Civil Procedure, but without success. It has been averred that the petitioner-husband has thereafter taken steps to move this court in revision against that order and that though he has entrusted his lawyer in the High Court, with that matter, no revision has yet been filed as the certified copies of the relevant orders, though applied for in the due time, could not be obtained.

(2.) ADMITTEDLY the petitioner has not made any payment in compliance with that order and the respondent-wife has then filed an application, and that too. purporting to be under Section 151 of the Code of Civil Procedure, for rejection of the Written statement of the petitioner-husband or for striking out his defence and the learned Judge has struck out his defence by the impugned order. The learned Counsel appearing for the petitioner has very strongly urged that the court had no jurisdiction to do so and that, even assuming it had, the court exercised the same illegally and with material irregularity to warrant our intervention in revision.

(3.) THE matrimonial proceeding in the court below, wherein on an application under Section 36 of the Special. Marriage Act the impugned order has been passed, is, as provided in Section 40 of the Act, to be regulated, as far as may be, by the Code of Civil Procedure, subject of course to the express provision of the Act and the Rules made thereunder. There is no dispute that there is no express provision in the Act or the Rules or the Code providing for striking out the defence of the opposite party for his failure to comply with an order to pay alimony and costs ordered under Section 36. Can the Court still do so under its inherent powers without any statutory provision to that effect?