Allowed

Smt. Naredla Jayasri, v. Dr. N. Ravi Kumar

Telangana HC24 Oct 2014CRP/2297/2014

Case brief

AI extract

What is this about?

This is a civil revision petition challenging the Family Court's dismissal of an application to stay divorce proceedings for non-compliance with interim maintenance orders. The High Court allowed the revision and set aside the lower court's order, directing the Family Court to stay the divorce petition until the respondent complies with the maintenance orders.

What did the court decide?

The Family Court ordered to stay the divorce petition (FCOP No.218 of 2007) until the respondent complies with the subsisting interim maintenance orders.

Smt. Naredla Jayasri, Vs Dr. N. Ravi Kumar — Matrimonial and Divorce | Telangana HC (2014)

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*THE HON’BLE SRI JUSTICE SANJAY KUMAR

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+CIVIL REVISION PETITION NO.2297 OF 2014

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% 24^TH OCTOBER, 2014

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# Smt. Naredla Jayasri … Petitioner Vs. $ Dr. N. Ravi Kumar … Respondent

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<Gist: >Head Note:

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! Counsel for petitioner : Miss Pingali Lakshmi ^ Counsel for respondent : Sri S. Sridhar

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? CASES REFERRED:

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1. AIR 1999 BOMBAY 388 2. (1995) 1 GLH 1197 = 1995 Law Suit (Guj) 76 3. AIR 1962 SC 527 4. 2003 (6) ALD 338 (DB)

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THE HON’BLE SHRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.2297 OF 2014

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O R D E R

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The petitioner is the wife of the respondent. The respondenthusband sought a decree of divorce in FCOP No.218 of 2007 on the file of the learned Judge, Family Court-cum-III Additional District Judge, Warangal. While so, the petitioner filed O.P.No.158 of 2011 on the file of the same Court seeking maintenance. Therein, she filed I.A.No.144 of 2011 for grant of monthly interim maintenance for her daughter and herself along with the daughter’s educational expenses. The Family Court, by its order dated 07.05.2013, granted interim maintenance of Rs.5,000/- each per month to the petitioner and her daughter and Rs.10,000/- towards legal expenses. Aggrieved by this order, both parties approached this Court. This Court, by order dated 02.06.2014, dismissed CRP No.3177 of 2013 filed by the respondent-husband and partly allowed CRP No.4061 of 2013 filed by the petitioner-wife. Thereby, the interim maintenance payable to the daughter was enhanced to Rs.10,000/- per month and she was also held entitled to Rs.50,000/- towards the cost of a laptop/computer. The interim maintenance granted by the Family Court to the petitioner-wife was confirmed. A time frame was also fixed for payment of the cost of the laptop/computer. It appears that the respondent-husband, having suffered this order, failed to comply with it. Thereupon, the petitionerwife filed I.A.No.63 of 2014 in the divorce OP filed by the respondenthusband, invoking the inherent powers of the Family Court under

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Section 151 CPC read with Section 10 of the Family Courts Act, 1984, to stay further proceedings in the divorce OP until the respondenthusband complied with the directions of interim maintenance. By order dated 25.06.2014, the Family Court dismissed this IA leading to the filing of this case under Article 227 of the Constitution.

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This Court, while ordering notice before admission on 25.07.2014, granted interim stay of further proceedings in the divorce OP for four weeks. The said order was extended thereafter from time to time. Upon notice, the respondent-husband entered appearance through counsel. Arguments having been heard at length, the matter is amenable to disposal at the admission stage.

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Ms. Pingali Lakshmi, learned counsel for the petitioner-wife, contended that the respondent-husband, having invoked the jurisdiction of the Family Court for a divorce decree, could not be permitted to disregard the orders for payment of interim maintenance passed by the same Court. She argued that such disregard on his part amounted to abuse of process. She placed reliance on case law to support her contention that the Family Court could exercise its inherent powers in such a fact situation and refuse to proceed with the divorce OP filed by the husband. On the contrary, Sri S. Sridhar, learned counsel for the respondent-husband, urged that the Family Court was not bound to take note of the orders of interim maintenance passed by it in a separate proceeding and therefore, the order of the Family Court dismissing the subject IA did not warrant interference.

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Now, a look at the judgments cited by Ms. Pingali Lakshmi, learned counsel. In VANMALA, w/o. MAROTI HATKAR V/s. MAROTI

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SAMBHAJI HATKAR^[1] , the Bombay High Court was dealing with the question as to what should be the approach of the Matrimonial Court in the matter of enforcement of its order with regard to interim alimony. The husband had filed a petition for divorce and the wife had filed an independent application under Section 24 of the Hindu Marriage Act, 1955 for interim alimony, whereupon an order was passed for payment

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of a particular sum per month to the wife and daughter. The husband however failed to pay the interim alimony. The application filed by the wife seeking intervention of the Court for a direction to pay arrears of maintenance was however rejected, directing the wife to file execution proceedings for recovering the maintenance arrears. The Bombay High Court however found fault with this approach of the Matrimonial Court. The observations of the Bombay High Court in this regard are of relevance and are extracted hereunder.

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“9. The learned Matrimonial Court, it appears, laboured under wrong impression that he lacks jurisdiction in the matter of enforcement of the order in the nature of interim alimony. He has completely forgotten the very purpose of Section 151 of the Civil Procedure Code. A Court can, in exercise of its powers under Section 151 of the Code of Civil Procedure, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumaciously flouts the order of the Court. There is a power in the Court to make such orders as may be necessary for the ends of justice and to prevent any abuse of process of the Court. The Matrimonial Court, therefore, was under duty to invoke the inherent powers under Section 151 of the Civil Procedure Code and should have compelled the erring husband to deposit whole of the arrears of interim alimony and the expenses of the proceedings in the Court within certain point of time. If in spite of passing of such orders, the party under liability flouts the order deliberately, the Court can stay the petition or the proceedings of divorce if the erring party is a petitioner. Similarly, if the erring party is the respondent, the Court can strike off the defence of such a party if it is found that the respondent is deliberately flouting the orders of the Court.”

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Similar was the view taken by the Gujarat High Court in SHIVILABEN V/s. PRAHLADBHAI ATMARAN I^[2] . Therein, the Gujarat High Court observed to the effect that the very purpose of granting interim alimony was to see that the party who was helpless and unable to maintain oneself during the pendency of the proceedings was given some means of sustenance. Once an order passed in this regard was not stayed but remained uncomplied with, the Gujarat High Court opined that the object of granting interim alimony would be frustrated. In such circumstances, the Gujarat High Court held that the application

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preferred by the wife to stay the proceeding initiated by the husband, for non-compliance with the order of interim alimony, warranted examination and rejection of such an application amounted to miscarriage of justice.

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Per contra, Sri S. Sridhar, learned counsel for the respondenthusband, relied upon the judgment of the Supreme Court in MANOHAR

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LAL CHOPRA V/s. RAI BAHADUR RAO RAJA SETH HIRALAL^[3] in support of his contention that the Court could not exercise its inherent powers when there are specific provisions which provide a remedy. However, the Supreme Court, in para 27 of the aforestated judgment, categorically observed that inherent powers are to be exercised by the Court in exceptional circumstances and that the Code lays down no procedure therefor. It is therefore for the Court to exercise its discretion in this regard basing on the peculiar and individual facts of the case before it.

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Be it noted that Section 151 CPC, by its very language, manifests that no fetters can be placed upon the Court’s inherent powers. This is clear from the unambiguous terms of the provision - ‘Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court’. Notably, inherent powers can be pressed into service by the Court to prevent abuse of its process.

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Sri S. Sridhar, learned counsel, also placed reliance on a Division Bench judgment of this Court in NEW INDIA ASSURANCE COMPANY LIMITED V/s. MOROR ALEXY^[4] and more particularly, the observations in para 18 thereof, which read as under:

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“18. Thus, we do not like to burden this judgment with catena of decisions on similar lines. Suffice it to say that the Courts have been uniformally holding that when a statute contains a particular mode for invoking the right and remedies, the same cannot be given a go bye and invoke Section 151 in the guise of seeking substantive justice and the Courts have no such power to statutory provision and grant relief under Section 151 of

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Civil Procedure Code. In effect, Section 151 is only a supplementary and complementary to the powers expressly conferred upon it by other provisions of the Civil Procedure Code. But, it cannot be treated as substitute powers. Therefore, the powers under Section 151 are not intended to enable the Court to create fresh rights in the parties, but they are only meant to enable the Court to pass such other Orders to meet the ends of justice as may be necessary keeping in view the rights which are conferred on parties by substantive law. Hence, considering the above state of affairs and the decisions of the Supreme Court, we find that the very approach of the Tribunal as confirmed by the learned Single Judge is erroneous and contrary to law.”

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It is demonstrable from the above observations that the Division Bench merely pointed out that inherent powers under Section 151 CPC were not intended to create fresh rights in the parties and that the mode prescribed by the statute for invoking the rights and remedies could not be given a go-by taking recourse to such inherent powers. This judgment would be of no avail in a case where inherent powers are to be exercised to prevent abuse of the process of the Court.

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Given the established facts, it is clear that the respondenthusband, having suffered an order for payment of interim maintenance at the hands of the Family Court, which was partly modified by this Court, chose to disobey the same. It is not his case that he has approached the Supreme Court assailing the orders passed by this Court in C.R.P. Nos.3177 and 4061 of 2013. Therefore, his careless disregard and disrespect towards such orders would necessarily have to be taken into consideration when he seeks to prosecute his divorce OP pending before the very same Court. Having invoked the jurisdiction of the said Court to seek relief by way of a divorce decree, the respondent-husband cannot blithely say that he will ignore the other order passed by the said Court, because it is adverse to him. Permitting such party to prosecute his case while merrily disobeying the order passed against him would invariably amount to an abuse of process. This, in essence, was the import of the judgments of the Bombay and Gujarat High Courts referred to supra. This Court is in respectful

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agreement with the views expressed therein. The Family Court unfortunately failed to take note of this aspect of the matter and disallowed the petitioner-wife’s application on the sole ground that the divorce OP had been pending for a long time. This short-sighted approach of the Family Court cannot be countenanced in the light of the principles adumbrated hereinabove.

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The order under revision is accordingly set aside and the CRP is allowed. The Family Court-cum-III Additional District Judge’s Court, Warangal, shall not proceed with FCOP No.218 of 2007 pending on its file until and unless the respondent-husband complies with the subsisting orders of interim maintenance passed in O.P. No.158 of 2011, as modified by this Court in its order dated 02.06.2014 in C.R.P. Nos.3177 and 4061 of 2013. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order. No order as to costs.

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SANJAY KUMAR, J 24^TH OCTOBER, 2014

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Note: L.R. Copy to be marked. (Bo) PGS

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[1] AIR 1999 BOMBAY 388 [2] (1995) 1 GLH 1197 = 1995 Law Suit (Guj) 76 [3] AIR 1962 SC 527 [4] 2003 (6) ALD 338 (DB)

Smt. Naredla Jayasri, v. Dr. N. Ravi Kumar

Case brief

What is this about?

What did the court decide?

Smt. Naredla Jayasri, v. Dr. N. Ravi Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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