Andhra HC (Pre-Telangana)
Atreyapurapu Venkata Subba Rao vs Atreyapurapu Venkata Shyamala on 8 September, 1989
Equivalent citations: II(1990)DMC486
JUDGMENT Amareswari, J.
1. The Civil Revision Petition is filed against the order of the learned Subordinate Judge, Pithapuram dated 20-2-1989 in O.P. No. 37 of 1988 striking out the defence and proceeding with the case.
2. The simple facts are : The wife filed a petition O.P. No 37 of 1988 for restitution of conjugal rights. Pending the main petition, she filed I.A. No. 298 of 1988 for interim maintenance on the ground that she was poor and unable to maintain herself. After hearing both sides, the petition was allowed on 15-12-1988. The said order has become final as no appeal has been filed. Thereafter, the main case was posted for enquiry.
3. On 17-2-1989 when the case was posted for trial, the husband was absent and he was set ex parte. Till then not a pie was paid towards maintenance. The learned trial judge struck out the defence of the respondent and posted the case for evidence of the wife. It is the validity of this order that is challenged in this Civil Revision Petition.
4. The learned Counsel for the petitioner strenuously contended that the Court has no jurisdiction to strike out the defences in a matter of this kind and there is no provision in the Hindu Marriage Act or the Civil Procedure Code warranting such an action and that the only course open to the party is to enforce the order by taking out execution proceedings.
5. The fact that the husband has not paid a single pie pursuant to the order dated 15-12-1988 even though the said order had become final is not in dispute. The object of Section 24 of the Hindu Marriage Act is to assist a poor party. The Section envisages that none of the parties to a matrimonial cause should suffer any disadvantage on account of their financial inferiority and the proceedings under Section 24 are pendente lite proceedings. It is true that under Section 28 of the Act, the orders can be enforced by execution. But such action is a time consuming process and in the mean time, the matrimonial proceeding itself may come to an end and the only way to prevent it is by staying the proceedings in the suit in which case the parties would be required to wait for considerable time. The matrimonial proceedings are expected to be disposed of expeditiously. As evident from Section 21(b) the trial should be conducted from day to day and the Court has to make every endeavour to conclude the trial within 6 month's from the date of notice of the petition on the respondent. Even appeals are expected to be concluded within 3 months from the date of service of notice. Therefore, stay of the proceedings would not further either the object of the Act or the cause of justice. In the circumstances, to ask a party to take resort to execution proceedings for the enforcement of the interim order of alimony pendente lite would be frustrating the cause of justice. Even contempt proceedings would not be an efficacious remedy and it is doubtful even after the contempt proceedings whether the amount would be paid.
6. There is no other provision in the Hindu Marriage Act for enforcement of the orders passed under Section 24. However, Section 21 of the Act says that all proceedings under the Act shall be regulated as far as may be by the Civil Procedure Code. So where the Act is silent, the Court can avail the provisions of C.P.C. Order 11 Rule 21 C.P.C. provides for striking out of the defence in case a party to the suit fails to comply with any order to answer interogatories or for discovery or inspection of documents. Similar provision is found in Section 35(b) when costs are made a condition for further proceedings. But none of these provisions provide for striking of the defence for non-compliance with the order passed under Section 24. It is therefore, to be seen whether Section 151 C.P.C. could be availed of. Section 151 C.P.C. says that nothing in the 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 the abuse of the process of the Court. I am of the view that to secure the ends of justice and to prevent the abuse of the Court's process, striking out of the defence can be resorted to under Section 151 C.P.C. The intention of the petitioner is to drive the respondent to take recourse to execution under Section 28 and to stay the main proceedings. If execution has to be resorted to staying the main proceedings, the petitioner would be achieving the object of protracting the proceedings. That would also be encouraging the parties to flout the orders of the Court and to delay the preceedings which are expected to be expeditious. In such circumstances, striking out the defence of such a defaulting party would be a proper order and the trial Court was right in passing the said order.
7. There are cases where the defaulting party is the petitioner, who has initiated the proceedings under the Hindu Marriage Act, the Court can stay the proceedings in order to enforce the order passed by it under Section 24 of the Act.
8. In Smt. Malkan Rani v. Krishna Kumar and Smt. Anita Karmokar v. Birendra Chandra Karmokar , the principle accepted was that where in any proceeding initiated by the husband under the Hindu Marriage Act, the Court directs the petitioner husband to pay the wife maintenance and litigation expenses, the Court has inherent power to stay the proceedings till the husband paid the account. A further principle recognised by these decisions is that the enforcement of the order otherwise than by execution is not prohibited or excluded by Section 28 of the Act. The Calcutta High Court in the afore-mentioned case held that the path of execution is not an easy "going highway and it does not provide any short cut to the destination" and that to hold that levying of execution is the only remedy for enforcement of the order made under Section 24 may result in making such order wholly nugatory and ineffective.
9. The other decisions I may refer to are Bhuneshwar Prasad v. Dropta Bai , Dr. Tarlochan Singh v. Smt. Mohinder Kaur and M. Ramchandra Rao v. M. S. Kowsalya (AIR 1969 Mysore Page 76). All these decisions proceed on the basis that when the petitioner who has initiated matrimonial proceeding is the defaulting party, the only effective method in which that party should be made to obey the order passed under Section 24 of the Act is to stay the proceedings initiated by the said party i.e., in effect the Courts have accepted the principle that it can exercise its powers under Section 151 C.P.C. to compel the defaulting party to obey the order of the Court.
10. The question in the present case is what the Court should do when the defaulting party is not the petitioner initiating proceedings under the Hindu Marriage Act. In the present case, the party initiated the proceedings is the wife and the defaulting party is the husband, who was interested in delaying the proceedings. In such a case," stay of the proceedings would not serve the purpose because it is such a stay which is wanted by the husband who resists the petition for restitution of conjugal rights. Under such circumstances, the power under Section 151 C.P.C. can be exercised to strike out the defence. That is the only method by which the person interested in resisting the proceedings could be compelled to uphold, the cause of justice. Such a procedure has been adopted by the Punjab High Court in Ram Swaroop v. Smt. Janaki . The Court has referred to its earlier decision in which it was observe that stay of proceedings may not be adequate and other steps may have to be taken to pay the indigent spouse any funds to prosecute the proceedings.
11. In Smt. Anuradhav. Santosh Math Khanna it was held that the inherent jurisdiction of the Court includes at power to review an interlocutory order and recall and cancel previous orders which causes injustice and it also has the power to grant stay of the proceedings and strike out the defence of the defendant in order to compel obedience to its orders or prevent abuse of the process of the Court.
12. This is also the view taken in Jai Singh v. Khirni Bhiklu (AIR 1978 Himachal Pradesh Page 45).
13. For all the above reasons, I confirm the order of the Court below and dismiss the Civil Revision Petition.
14. Sri S. Venkata Reddy, the learned counsel for the petitioner, made an oral application for leave to appeal to the Supreme Court of India Leave is granted as substantial question of law of general importance, which, requires to be decided by the Supreme Court, is involved.