Santosh Vs Roshani

Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984, the appellant/plaintiff has preferred this appeal calling in question the legality, validity

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and correctness of impugned order dated 03/02/2025 (Annexure A/1) passed by learned District Judge Sarangarh, District Sarangarh – Bilaigarh in Civil Suit No. A-23/2022 whereby the Family Court has terminated the matrimonial proceeding initiated by the appellant/plaintiff under Section 13 of the Act of 1955 for non-compliance of order under Section 24 of the Act of 1955 granting interim maintenance/ cost of proceeding/ litigation expenses.

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The short question involved in this appeal is, “whether a matrimonial proceeding taken under the Hindu Marriage Act, 1955 (hereinafter, the Act of 1955) can be terminated by the matrimonial Court in exercise of its inherent power and jurisdiction for non-compliance of an order passed under Section 24 of the Act of 1955 granting interim maintenance/ cost of proceeding/ litigation expenses ?”

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The aforesaid question arises on the following factual backdrop :-

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(a) In a proceeding initiated by the appellant/plaintiff under Section 13 of the Act of 1955 seeking decree for divorce or judicial separation on the ground of cruelty, etc., the Family Court, by its order dated 07/12/2023, directed the appellant/plaintiff to pay Rs. 3,000/- per month to the respondent/defendant towards cost and litigation expenses and thereafter, by order dated 09/05/2024, further

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directed the appellant/plaintiff to pay additional amount of Rs. 1,500/- per month to the respondent/defendant for maintenance of their minor daughter, which was partly complied with as the appellant/plaintiff deposited Rs. 12,000/- in total on 22/02/2024, 04/05/2024 and 26/07/2024, however, despite giving several opportunities thereafter, the appellant/plaintiff did not make any further payment on account of which the respondent/plaintiff filed an application on 06/09/2024 praying that the matrimonial proceeding be stayed till the order granting maintenance under Section 24 of the Act of 1955 is complied with, which was opposed by the appellant/plaintiff.

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(b) The Family Court, by impugned order dated 03/02/2025, held that the amount of Rs. 88,000/- has not been paid by the appellant/plaintiff despite giving several opportunities and though the respondent/defendant has pleaded for staying the matrimonial proceeding, but in the interest of justice, the Family Court proceeded to terminate the proceedings under Section 13 of the Act of 1955 which has led to the filing of the instant appeal by the appellant/plaintiff.

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Mr. U.R. Koshale, learned counsel for the

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appellant/plaintiff, would submit that the inherent power could not have been exercised perversely causing prejudice

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to the appellant/plaintiff as by virtue of Section 151 of CPC, the proceeding cannot be terminated and at the best, it could have been stayed till the payment of arrears of the maintenance amount.

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None appeared on behalf of the respondent/defendant though served.

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Mr. Rahul Tamaskar, learned Amicus Curiae, would submit that at the best, in exercise of its inherent power under Section 151 of CPC, the family Court could have stayed the proceedings but it could not have terminated the proceeding to prejudice the other side. He would rely upon the decision rendered by the Madhya Pradesh High Court in the matter of Bhuneshwar Prasad v. Dropta Bai 1.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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It is not in dispute that the application under Section 24 of the Act of 1955 filed by the respondent/defendant was granted and by order dated 07/12/2023, appellant/plaintiff was directed to pay Rs. 3,000/- per month to the respondent/defendant towards cost and litigation expenses and thereafter, by order dated 09/05/2024, the appellant/plaintiff was further directed to

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1 1962 SCC Online MP 54

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pay additional amount of Rs. 1,500/- per month to the respondent/defendant for maintenance of their minor daughter and the appellant/plaintiff partly complied with the said order and paid Rs. 12,000/- to the respondent/defendant as on the date of filing of application by the respondent/defendant i.e. on 06/09/2024, Rs. 88,000/was outstanding against the appellant/plaintiff and despite of the respondent/defendant filing application for staying the proceedings, the Family Court recorded the finding that since the arrears of maintenance amount has not been paid despite giving several opportunities, there is no other alternative except terminating the proceedings and accordingly, proceeded to terminate the proceedings.

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The said issue involved in this appeal came up for consideration before the Madhya Pradesh High Court in the matter of Bhuneshwar Prasad (supra) wherein it has been held that a matrimonial action under the Act of 1955 can be stayed by the Court in exercise of its inherent power for non-compliance of an order under Section 24 of the Act of 1955, and it has been observed as under :-

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“In my judgment, this application must be dismissed. Having regard to the object of section 24 and the language of that provision, there can be no doubt that a matrimonial action under the Act can be stayed by the Court in the exercise of its inherent power for non compliance with an order under section 24. The object of section 24 is clearly

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to enable the indigent spouse, who has no independent income sufficient for her or his support and for meeting the necessary expenses of the proceeding, to conduct her or his defence in the proceeding. The basis of an order under section 24 is that the spouse applying under section 24 is without means. Section 24 clearly contemplates the payment of expenses and maintenance allowance while the rights of the parties are in contest and during the proceedings. As the marginal note indicates, section 24 is concerned with maintenance pendente lite and expenses of proceedings. The words “pendente lite” mean “while the rights of the parties are in contest.” The section itself speaks of payment of maintenance and expenses of proceedings during the proceedings. It says, the Court may “on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum………The words “during the proceeding” are significant. They not only fix the duration of the maintenance allowance but also the time of the payment of the maintenance allowance and the expenses of the proceeding. The natural meaning of the words “during the proceeding” is “throughout the continuance of the proceeding” and “in the time of the proceeding.” Thus the expression “order the respondent to pay to the petitioner the expenses of the proceeding and monthly during the proceeding” means “order the respondent to pay to the petitioner the expenses of the proceeding and monthly after the commencement of the proceedings and before their expiration.” It is easy to see that if payment of maintenance pendente lite and expenses of the proceeding is to be deferred until after the termination of the proceeding, the very basis of an order under section 24 directing the payment would disappear. Maintenance pendente lite and expenses of the proceeding are ordered to be paid under section 24 on the ground that the spouse in whose favour the order has been made is without the necessary means to maintain herself or himself during the proceedings and bear the expenses of defending them. If the payment of this amount is not made before the termination of the proceedings and if the party in whose favour the order has been made can afford to wait until after the proceedings are terminated, then it may well be said that the

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order under section 24 was not necessary for the protection during the proceedings of the party concerned. It is true that section 24 does not expressly provide for the situation arising because of non-compliance with an order under that provision. It does not also prohibit the stay of the suit for non-compliance with an order made under it. That being so, there is nothing to prevent a Court from exercising its inherent power and staying the suit for the purpose of carrying out the object of an order made under section.”

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The aforesaid decision of the Madhya Pradesh High Court has been followed with approval recently by the Kerala High Court in the matter of Maximus Fernandez alias Maxwell

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Fernandez v. Olga Fernandez 2.

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Following the principle of law laid down by the Madhya Pradesh High Court in Bhuneshwar Prasad (supra) which has been followed by the Kerala High Court in Maximus Fernandez (supra), it is quite vivid that the Family Court is not helpless and jurisdictionless when a party flouts and disobeys an order for payment of interim maintenance and thereby puts the other party at a disadvantage. There may arise situations where justice has to be done and in such situations, the Family Court has power and jurisdiction under Section 151 of CPC to do justice and to redress wrong including staying the matrimonial proceeding.

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In the matter of Manoharlal Chopra v. Raja Seth Hiralal 3,

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it has been held by their Lordships of the Supreme Court that the inherent powers are not in any way controlled by

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2 2018 SCC Online Ker 3479

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3 AIR 1962 SC 527

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the provisions of the Code as has been specifically stated in Section 151 of the CPC itself. The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the CPC.

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In view of the aforesaid legal discussion, it is quite vivid that the impugned order passed by the Family Court in exercise of its inherent power, terminating the proceedings initiated by the appellant/plaintiff for non-compliance of order under Section 24 of the Act of 1955 is not in accordance with law. It is true that the Family Court has power and jurisdiction to stay further proceedings of the suit till the order passed under Section 24 of the Act of 1955 is complied with, however, its inherent power cannot be exercised to terminate the proceedings which was even not prayed by the respondent herein and cause serious prejudice to the appellant/ plaintiff herein. Accordingly, the impugned order is hereby set aside and it is directed that the proceedings of the civil suit No. A-23/2022 (Santosh v. Roshani) shall remain stayed till the arrears of maintenance amount is deposited by the appellant/plaintiff. The Family Court is directed to continue further proceeding of the suit once the arrears of maintenance amount is deposited by the appellant /plaintiff.

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Before parting with the record, we appreciate the assistance rendered by Mr. Rahul Tamaskar, who on short notice assisted the Court.

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With the aforesaid observation and direction, this appeal stands disposed of. No cost(s). S

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SD/SD/-

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(Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) JUDGE JUDGE

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Harneet

Santosh v. Roshani

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Santosh v. Roshani

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