N. BALASUBRAMANIAM Vs. SMT. B. SAROJA

JUDGEMENT

(1.) THE facts relevant for the disposal of this appeal lie in a very narrow compass. N. Balasubramaniam appellant (hereinafter referred to as the husband) made a petition for divorce under the Hindu Marriage Act on July 21, 1958. Notice of the said petition was served on Mrs. B. Saroja (hereinafter referred to as wife) on 16th August, 1958. She made an application under Section 24 of the Act on September 18, 1958. The application was contested by the husband, but was granted by the order of the trial Court dated July 18, 1959. By that order the husband was directed to pay to the wife Rs. 700 as necessary expenses of the proceedings and further to pay her monthly Rs. 100 as maintenance during the proceedings relating to the divorce petition. This amount not having been paid immediately, the wife applied to the trial court on August 21, 1959 for staying further proceedings in the divorce petition. In his written reply to that application the husband stated on 29th August. 1959 inter alia, that he had no objection to the proceedings being stayed till the decision of his intended appeal against the order of the trial Court dated 18th July. 1959 by the High Court. Such an appeal was filed by him on 2nd September, 1959 but was unfortunately for him dismissed in limine by this Court on September 3, 1959. In the meantime the trial Court had on the application of the wife dated 21st August, 1959 and in view of the concession made by the husband in his reply dated 29th August, 1959 directed stay of all further proceedings in the divorce petition and had adjourned the same sine die. It was not before 8th January, 1965, long alter the commencement of the execution proceedings that the husband woke lip and got his diverse petition brought back before the trial Court and had it dismissed as withdrawn.

(2.) ON July 8, 1963 the wife made an application for recovery of the amounts due to her under orders of the trial Court dated 18th July 1959 by way of execution of the same. The application for execution was contested by the husband on the ground that it was barred by time as having been made more than three years after the date of the order sought to be executed i.e., three years after 18th July, 1959 and also on the ground that the divorce proceedings having been given up by him there was no question of his paying her Rs. 700 on account of "Necessary expenses of the said proceedings". Similar objection to the payment of monthly maintenance was also raised.

(3.) MR . I.K. Mehta, the learned counsel appearing for the husband has argued before me that the stay of proceedings in the main case also amounted to stay of operation of the order for payment of the maintenance amount. He concedes that the effect of such an interpretation of that order would be that the direction for payment would again become operative after the dismissal of she husband's appeal by the High Court on 3rd September, 1959. He then submits that in view of the hardship which the husband had suffered under a mistaken impression about his legal position, the Court should direct, following the law laid. down in Pilcher v. Pilcher, (1956) 1 All. E. R. 463, that maintenance allowance for one year only be paid by him to the wife.