Madras High Court
Anita vs Mahaveer Sancheti on 5 August, 2014
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.08.2014 CORAM THE HONOURABLE Mrs. JUSTICE. S.VIMALA Civil Revision Petition (NPD) No.2717 of 2014 and M.P.No.1 of 2014 Anita ... Petitioner Vs. Mahaveer Sancheti ... Respondent Prayer :- Civil Revision Petition (NPD) filed under Article 227 of the Constitution of India to dispose of I.A.No.2802 of 2013 in O.P.No.42 of 2011 on the file of the III Additional Family Court, Chennai. For Petitioner : Ms. Anita, Party-in-person - - - O R D E R
Every court must be deemed to possess by necessary intendment all such powers, as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything, without which the thing itself cannot exist.) (Vide Earl Jowitt's Dictionary of English Law 1959 Edn. P.1797). Whenever anything is required to be done by law and it is found impossible to do that thing, unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment.
2. Should it not be the approach of the Matrimonial Court in the matter of enforcement of the order with regard to interim alimony pendente lite? is the issue raised in this Civil Revision Petition.
3. By the order, dated 26.04.2013, the Family Court in I.A.No.3741 of 2011, ordered the husband to pay Rs.10,000/- per month, as interim maintenance, to his wife, from the date of filing of the petition, i.e., from 21.12.2011. As the maintenance was not paid, for non-compliance of the order, dated 26.04.2013, dismissal of O.P.No.42 of 2011 was sought for in I.A.No.2802 of 2013.
2.1. Aggrieved over the adjournment granted, this Civil Revision petition has been filed, seeking direction to the III Additional Family Court, Chennai, to dispose of I.A.No.2802 of 2013 in O.P.No.42 of 2011 within a time frame, to be fixed by this Court.
3. Even though the petition could be disposed of, without notice to the respondent, in order to try the possibility of settling the matter, this Court issued notice to the respondent, in the address given by the respondent himself in the counter affidavit filed in I.A.No.2802 of 2013 in O.P.No.42 of 2011. The notice has been returned as 'No such addressee'. Therefore, the intention of the respondent seems to be to drag on the matter.
4. Admittedly, from December 2011 (21.12.2011) to August 2014, the amount of maintenance due is Rs.3,20,000/-.
4.1. What are the ways and means by which the Family Court can make the husband to pay maintenance to the wife?
4.2. Whether the Court can be a mute spectator merely recording the fact that maintenance amount is not paid or ask the wife to file Execution Petition, so that it will give some more opportunity to the husband to drag on the proceedings or to grant innumerable adjournments, so that the husband is happy in seeing that the wife is made unhappy in not being able to realise the maintenance amount.
5. When the application to non-suit the petitioner has been filed, thereby expressing the imminent need to get the maintenance, the Family Court should have acted in a sensible manner and should have passed the order immediately.
5.1. The silence on the part of the Family Court has made the wife to approach this Court seeking for a direction to dispose of the application.
6. Even though there are no express provisions enabling the Court to strike out pleadings / defences, in case of non-payment of maintenance/non obedience to the orders of the Court, still various Courts have held, as indicated below, that, in order to effectively adjudicate and to administer justice, in a meaningful way, invoking powers under Section 151 of the CPC is imperative and in appropriate cases, Court can strike out pleadings:
(i) FAMILY COURT, PALAKKAD v. JAYASREE (Mat.Appeal.No. 672 Of 2011 dated 09.03.2012 Kerala High Court):
...A court is meant to do justice, no doubt, within the confines of law and principles which are settled from time to time. A court is intended to be an effective adjudicator of disputes. If the court is to be an effective adjudicator of disputes it must inevitably be clothed with necessary power to deal with situations which may arise where the court must have power to strike off defence so that the people will continue to repose faith in the system and resort to lawful means which are provided by the courts. It is for the purpose of preserving its power and effectiveness that the courts have recognized inherent power to strike off defence outside Order 6 Rule 16.
(ii) Parukutty Amma v. Thankamma Amma, 1988 (1) KLT 883:
"5. The next question is, should such a power with the court include a power to strike off the defence in deserving cases for meeting the ends of justice. If the court feels that to meet the ends of justice such a course is necessary, namely, to strike off the defence, I am of the view that such a power inhers with the court from its very constitution as a court and that power is absolutely necessary in certain circumstances to meet the ends of justice. I make it clear that the question is not res integrata.
(iii) AIR 1932 Madras 263 (Venkatacharyulu v. Yesobu):
".....that the striking off of the defence was within the jurisdiction of the Court in the exercise of its inherent powers under S.151 although it was not the only order which the Court could pass under the circumstances of the case".
(iv) 1992 (2) KLT 553 (Mangalam v. Velayudhan Asari):
"To hold that the levying of execution is the only remedy for enforcement of an order made under S.24 of the Hindu Marriage Act may result in making such order wholly nugatory and ineffective. Even in the absence of a provision in the Hindu Marriage Act for striking off the defence in case, one of the parties to the proceedings wilfully refuses to comply with the order of the court, there is inherent power in the court to pass such orders as are necessary for the ends of justice or to prevent the abuse of the process of the court. S.151 of the Code of Civil Procedure saves the inherent powers of the court and, in exercise of that power, the court can strike off the defence in deserving cases for meeting the ends of justice. The court below had inherent jurisdiction under S.151 of the Code of Civil Procedure, to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act."
6.1. In the decision of this Court, reported in I (2003) DMC 562, (2002) 3 MLJ 319 (Hema vs Parthasarathy on 31 July, 2002) the following cases have been considered:-
(i) 1988(1) Law Weekly 44 (Raju v. Devaki):
"It has been held by this Court that S. 151, C.P.C. could be invoked to stay the trial of an O.P., in which the petitioner fails to pay maintenance granted under S. 24 of the Hindu Marriage Act. Therefore, when a spouse fails to pay interim maintenance as ordered by Court, the court has no other alternative than to stay the trial of the O.P."
(ii) 1989 (2) Law Weekly 423 (Narayana Nadar v. Jayakodi Ammal):
"... There is no specific provision in the Act to the effect that non-compliance with an order passed by the Court in the course of matrimonial proceedings, would enable the other party to seek the striking out of the defence of the defaulting party. Further, under S. 151, Code of Civil Procedure, which is indisputably applicable to proceedings under the Act, the Court may exercise its powers for serving the ends of justice or for prevention of the abuse of the process of Court. In this case, it may be that the petitioner had not done or failed to do anything, amounting to the abuse of the process of Court. Even so, in order to serve the ends of justice, particularly in matters relating to matrimony, it cannot be regarded that the Court is helpless when a party flouts and disobeys an order of Court for payment of interim alimony and litigation expenses and thereby puts the other party at a disadvantage in the matter of the conduct of the proceedings, necessarily leading to a delay in the conclusion of such proceedings. Under those circumstances, the order of striking out the defence of the defaulting party, would subserve the ends of justice and only such an order would enable the fulfilment of the objects of the Act of preventing inequity in the matter of conduct of the matrimonial proceedings and securing speedy relief as well. It is found that the respondent had initiated proceedings for restitution of conjugal rights and by the non-payment of the interim alimony and litigation expenses by the petitioner, if the proceedings are to be stayed till the amount is realised by execution, many years would roll by in the interval and in the absence of any effective method of stopping ageing process of the parties, the relief that may ultimately be made available, may become illusory or even futile. It seems to me that the only method by which a person opposing matrimonial proceedings under the Act, could be compelled to further the objects of the Act and to secure speedy disposal of the matrimonial causes and reliefs prayed for therein, is by striking out the defence of the defaulting party. ..."
(iii) II (1990) DMC 486 (Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shyamala):
"I am of the view that to secure the ends of justice and to prevent the abuse of the Court's process, striking out the defence can be resorted to under Section 151, CPC. 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 order of the Court and to delay the proceedings 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."
(iv) II (1992) DMC 545 (Mangalam v. P.S. Krishna Pillai):
... the trial Court had inherent jurisdiction under Section 151 of Code of Civil Procedure to give effect to its order and prevent the abuse of the process of the Court by striking off the defence, even if there is no such provision in the Hindu Marriage Act.
(v) AIR 1999 Bom 388 : 2000 (1) BomCR 114 (Vanmala v. Maroti Sambhaji Hatkar):
The remedy of execution is not an easy remedy. The execution does not at all provide short cuts to the destination. The difficulties of a successful litigant begin when he succeeds to obtain an order in his favour. Driving out a penniless wife to initiate a separate execution proceedings for the purpose of recovery of arrears of interim alimony and expenses of the proceedings frustrates the very purpose and spirit of Section 24 of the Hindu Marriage Act. The approach adopted by the learned Matrimonial Court makes the very purpose of Section 24 of the Hindu Marriage Act redundant and nugatory.
.... A Court can, in exercise of its powers under Section 151 of the Civil Procedure Code, 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. .... 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.
.... In befitting situation and in appropriate circumstance, the Matrimonial Court should not hesitate to invoke the inherent powers under Section 151 of the Civil Procedure Code in the matter of implementation of order with regard to interim alimony and the expenses of the litigation by staying the proceedings filed under the Hindu Marriage Act for non-compliance of the order passed under Section 24 of the aforesaid Act and by striking off the pleadings of defaulting party."
(vi) 1997 (1) Law Weekly 637 (Kannamma v. Y. Subramaniam):
"... If the order of the court below is not obeyed, petitioner herein (wife) is entitled to initiate proceedings against the husband for disobedience of orders of Court. At the same time, the lower court also will consider whether it should continue to stay the trial or whether it should dispose of the main petition by dismissing the same for non-compliance of the order. If the Court feels that some more time has to be given for compliance of the Order, this order shall not stand in the way. In such a case, further proceedings of the main petition shall stand stayed. Even during the period of stay, respondent is bound to pay maintenance to both the children and alimony to the petitioner at the rates fixed by the earlier order of the court below. If the court below is inclined to grant some time for the husband to make the payment, it should not adjourn the main H.M.O.P. indefinitely, and it is made clear that whenever the trial begins, the entire amount due as on that date must have been paid."
(vii) The Hon'ble Supreme Court in (Appeal (civil) 1473 of 1999) Hirachand Srinivas Managaonkar vs Sunanda :
(i) whether refusal to pay alimony by the appellant is a wrong within the meaning of section 23(1) (a) of the Act so as to disentitle the appellant to the relief of divorce. The answer to the question, as noted earlier, depends on the facts and circumstances of the case and no general principle or straight-jacket formula can be laid down for the purpose. We have already held that even after the decree for judicial separation was passed by the Court on the petition presented by the wife it was expected that both the spouses will make sincere efforts for a conciliation and cohabitation with each other, which means that the husband should behave as a dutiful husband and the wife should behave as a devoted wife. In the present case the respondent has not only failed to make any such attempt but has also refused to pay the small amount of Rs.100 as maintenance for the wife and has been marking time for expiry of the statutory period of one year after the decree of judicial separation so that he may easily get a decree of divorce. In the circumstances it can reasonably be said that he not only commits the matrimonial wrong in refusing to maintain his wife and further estrange the relation creating acrimony rendering any reapprochement impossible but also tries to take advantage of the said wrong for getting the relief of divorce. Such conduct in committing a default cannot in the facts and circumstances of the case be brushed aside as not a matter of sufficient importance to disentitle him to get a decree of divorce under section 13(1A).
7. The legal position indicated above point out that the Court is expected to function in such a way that the orders passed by the Court are being obeyed. The maxim indicated in the opening paragraph will be the guiding Principle for the Courts to function.
8.Under such circumstances, the Family Court should have passed orders in I.A.No.2802 of 2013 without granting adjournments. The Family Courts Act is a most flexible one, enabling the Family Court Judges to invoke novel and creative ideas, so as to dispose of the cases quickly and effectively. Still, it is not being done.
9.Therefore, the Family Court is directed to dispose of the application in I.A.No.2802 of 2013 in O.P.No.42 of 2011 and to report compliance, within one week, from the date of receipt of a copy of this order.
10. This Civil Revision Petition is ordered accordingly. No costs.
05.08.2014 Index : Yes/No Internet : Yes/No srk S.VIMALA, J., srk/arr To 1.III Additional Family Court, Chennai 2.The Section Officer, V.R.Section, Madras High Court, Chennai 104 CRP (NPD) No.2717 of 2014 and M.P.No.1 of 2014 05.08.2014