DURGA DASS Vs. TARA RANI AND ANR.

JUDGEMENT

(1.) THIS is an application under Section 24 of the Hindu Marriage Act, claiming Rs. 320, as litigation expenses and Rs. 50 as a monthly maintenance amount. The learned Counsel for Shri Durga Dass Appellant, Mr. V.P. Sharda, has urged that the present proceedings in the High Court are not under the Hindu Marriage Act and so the provisions of Section 24 of the Hindu Marriage Act (Act. No. 25 of 1955, hereinafter referred to as the Act), are not attracted to the facts of this case.

(2.) TO appreciate the respective contentions of the learned Counsel, a few relevant facts may be noticed. The applicant who was the wife of Shri Durga Dass Appellant secured a decree of divorce and she was granted Rs. 50 as the alimony under Section 25 of the Act, and that amount of alimony was made a charge on the movable and immovable property belonging to Shri Durga Dass except the amount of provident fund. With a view to recover the unpaid amount of alimony the applicant got attached the gratuity amount and the bonus amount lying with the Railway Administration belonging to Shri Durga Dass. Objections were raised in the executing Court that neither the bonus amount nor the gratuity amount could be attached and the Senior Subordinate Judge, Ludhiana, vide his order dated July 10, 1970, held that the gratuity amount could be attached and the amount of alimony could be realized there from, but bonus amount was not attachable as the same formed part of the provident fund. Against that order, two execution appeals have been filed -one at the instance of Durga Dass, Execution First Appeal No. 119 of 1970, and the other at the instance of Shrimati Tara Rani, Execution First Appeal No. 109 of 1970. In her appeal Shrimati Tara Rani has claimed that even bonus amount is attachable and that it is not a part of the provident fund and Shri Durga Dass, on the other hand in his appeal has claimed that even the gratuity amount is not attachable and it is in these execution first appeals that the present application under Section 24 of the Act, has been presented by Shrimati Tara Rani.

(3.) ACCORDING to the learned Counsel for Shri Durga Dass, the expression 'proceedings under this Act', have to be construed strictly to mean the proceedings which are envisaged under the Act, such as, the proceedings relating to the restitution of conjugal rights, judicial separation, divorce or dissolution of marriage, while counsel for the applicant Shrimati Tara Rani has urged that the said expression shall not only include the proceedings that are got enumerated above by the learned Counsel for the Appellant but the ancillary proceedings taken out to enforce orders and decrees under the said Act, shall also be considered as arising under the Act. Learned Counsel for the applicant has submitted that Section 28 of the Act, envisages the enforcement of the decrees and orders passed under the Act, in like manner as the decrees and orders of the Court made in the exercise of the original civil jurisdiction. Learned counsel has further urged that if the civil proceedings like the execution proceedings meant to realize the arrears of the maintenance amount are not to be treated proceedings under the Act, then the order passed under Sections 24 and 25 of the Act, granting alimony or maintenance to a spouse shall be rendered ineffective if the spouse who has been ordered to pay the amount does not pay the amount and forces the other spouse in whose favour the order has been passed to realize the amount by execution and if the spouse who is entitled to the amount is so poor that he or she is not in a position to finance the execution proceedings. The learned Counsel has referred me to a decision of the Calcutta High Court reported in Sm. Anita Karmokar and Anr. v. Birendra Chandra Karmokar, AIR l962 Cal. 98 wherein the facts were that an order under Section 24 of the Act, was passed granting certain amount to one of the spouses and the other spouse did not pay and the question arose as to whether the Court has a right to stay the proceedings till such time the amount ordered to be paid under Section 24 of the Act, is paid by the other spouse who was the spouse to whom the money was granted and who was to realize that amount by taking out execution proceedings. Banerjee, J., approvingly quoted the following observations of their Lordships of the Privy Council reported in General Manager of Raj Durbhanga v. Ramput Singh, 14 M.I.A. 605: