Punjab-Haryana High Court
Bhupinder Kumar vs Smt. Angoori Devi on 28 November, 1997
Equivalent citations: (1998)118PLR118
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Whether an application under Order 9 Rule 13 of the Code of Civil Procedure can be termed or construed as proceedings, within the meaning of the expression "in any proceedings under this Act" appearing in Section 24 of the Hindu Marriage Act, is the short question that falls for consideration in this Civil Revision.
2. It may be appropriate to refer to the necessary facts giving rise to this petition.
3. The petitioner Bhupinder Kumar was married to Angoori Devi on 12.12.1994 as per Hindu rites. On 18.4.1995, Bhupinder Kumar, petitioner filed a petition Under Section 12 of the Hindu Marriage Act (hereinafter referred as the 'Act') praying for a decree for annullment of marriage. The grounds for such prayer were that the petitioner came to know on 12.12.1994 that Angoori Devi was not the girl shown to the petitioner and his father in November, 1994. Secondly it was alleged that the wife was mentally sick from the beginning and she could not be cured and she was not able to do customary work in the kitchen and as such the marriage was a result of fraud. On 14.12.1994, the parents of the wife visited the house of the husband-petitioner and they were told about this and they assured that they will take her to a doctor.
4. The wife-respondent refused to accept the summons through registered cover and she is stated to have been served in the ordinary process. However, as nobody appears on her behalf on 5.6.1995, the date of hearing, therefore, she was directed to be proceeded against ex-parte by the learned Court. The petitioner before the trial Court examined himself annulling the marriage between the parties on 8.6.1995. Having come to know of this ex-parte decree, the wife-respondent filed an application under Order 9 Rule 13 of the Civil Procedure Code (hereinafter referred to as the 'Code') for setting aside the ex-parte judgment and decree dated 8.6.1995 on 18.10.1995. During the pendency of this application, an application Under Section 24 of the Act was also filed by the wife-respondent claiming interim maintenance and litigation expenses. In the application Under Section 24 of the Act. It was stated that carry home salary of the husband was Rs. 2800/- plus. The husband is employed as Sub Inspector in the Cooperative Department. The learned trial Court vide order dated 17th October, 19% allowed this application Under Section 24 of the Act while granting Rs. 600/- per month as interim maintenance with effect from the date of application i.e. 12.1.1996 and Rs. 1000/- as litigation expenses. It is this order which has been impugned in this revision petition.
5. The learned counsel for the petitioner-husband has basically raised two contentions. Firstly that application under Order 9 Rule 13 read with Section 151 of the Code for setting aside the ex-parte judgment and decree are not the proceedings arising under the Act and as such any claim Under Section 24 of the Act for maintenance pendente lite and litigation expenses is not maintainable. Secondly, the learned counsel contended that amount awarded to the respondent-wife is exorbitant.
6. In order to appreciate the first contention raised on behalf of the petitioner, it is relevant to refer to the provisions of Section 24 of the Act which read as under :-
"24. Maintenance pendente lite and expenses of proceedings, where in any proceeding under this Act, it appears to the Court that either the wife or the husband, as the case may be, have no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable."
Necessary corollary of the reading of this section is that proceedings should be one which would and can be termed as proceedings under this Act, to enable an applicant to maintain a petition or application Under Section 24 of the Act. Section 21 of the Act declares that the provisions of the Code 1908 would be applicable to the proceedings under this Act. Section 21 of the Act reads as under :-
"21. Application of Act 5 of 1908 - Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure Code."
In addition to the applicability of the Code in general certain other provisions contained in this Act further make specific reference to the application of various provisions of the Code while Courts are exercising jurisdiction under the provisions of , the Act. In this regard reference can be made to Section 28 and 28-A of the Act. Abare perusal of the above sections shows that all the decrees made by the court in any proceeding under this Act shall, subject to the provisions of the Act, be appealable as decrees of the Court made in the exercise of its original civil jurisdiction. Further every such appeal lie to the Court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. All decree and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the Court made in the exercise or its original civil jurisdiction for the time being in force. The cumulative effect of these provisions is that the provisions of the Code are applicable to the proceedings under this Act unless the provisions of the Act specifically exclude such applicability. For example the Legislature intended to make special provisions in regard to transfer of cases from one Court to another and under the provisions of Section 21-A(3) it is so provided that no appeal shall lie on the question of costs alone as stipulated Under Section 28(3) of the act. The Legislature has specifically and un-ambiguously has provided the requisite provisions to clear its intention. Thus, manifestation of legislative intent is apparent in the statute, with specific regard to the applicability of the provisions of the Code. Further it even provides the definite scope of its applicability and restrictions thereof have been spelled out. The provisions read together or independent do not reveal any ambiguity to the intention of the Legislature to make the provisions of the code applicable to this Act.
7. Once a decree passed under the provisions of the Act is to be a decree under the code and has to be enforced as a decree then every provisions dealing with execution or setting aside of the decree would be a proper recourse adopted under the Code as applicable to the Act.
8. One is unable to see how an application for setting aside the ex-parte decree would not be a proceedings under the Act. The provisions regulating the procedural part of an enactment must be construed liberally so as to achieve the ends of justice and the construction which will frustrate or be determinental to the basic rule of law, must be avoided. A person who claims that he or she was not served in accordance with law and the decree passed against such party is liable to be set aside on various grounds, must have an opportunity to prove his/her case before the Court of com petent jurisdiction. The scheme of the Act with specific reference to Section 24 of the Act clearly indicates the legislative intend to provide maintenance to a spouse who otherwise satisfies the ingredients Under Section 24 of the Act to claim maintenance or litigation expenses. To curtail or deny the benefit of such a provisions on the interpretation adopted by the learned counsel for the petitioner would amount to frustrate the Legislative intend at a very threshold.
9. For the proceedings, to be any proceedings under this Act, there has to be a direct nexus between the proceedings taken by a party and the provisions of the Act duly supported by the provisions of the code. If the proceedings essentially do not arises from the provisions of this Act or the provisions which aid implement of the provisions of this Act then alone such a petition can be sustained. If a decree to be effected and executable, the Court has to exercise its powers like that of the Court of Civil Jurisdiction under the provisions of the Code. Thus, it must necessarily follow that application effecting the decree within the four corners of the Act in the Code would have to be construed as proceedings arising under the Act. Such proceedings cannot be treated or dealt with as foreign or alien to the provisions of the Act.
10. A bench of this Court in the case of Madan Lal v. Meena, (1986-2) P.L.R. 601, while dealing with somewhat similar circumstances held as under:-
"The argument being that while seeking and obtaining a decree for divorce, be it ex parte or after contest would be "proceedings" under the Act, an application for setting aside such a decree would be one under the Code of Civil Procedure and thus not one under the Act, and therefore the provisions of Section 24 of the Act, would not be available in respect thereof, There is a patent fallacy in this contention in as much as, the provisions of the Code of Civil Procedure, in the Hindu Marriage Act, 1955, are there merely to regular the proceedings therein and not as substantive law separate and distinct from it."
In the case of Surendra Kumar Asthana v. Smt. Kamlesh Asthana, AIR 1974 Allahabad, 110 the Court concluded that a revision application Under Section 151 of the Civil Procedure Code between the parties who were parties to the matrimonial proceedings, is also a proceedings under the Act. The expression "in any proceedings under this Act' has been stated to be an expression of wide meaning. Connotation given to the expression was stated to include all proceedings arising out of or in any manner linked with the main petition. An application by the husband for setting aside an ex-parte order passed Under Section 24 of the Act, granting maintenance to the wife, was held to be a proceedings linked with the main petition. Consequently, the application for interim maintenance in that proceedings was held to be maintainable in this regard reference can be made to 1979 H.L.R. 305 Dharambir Singh v. Smt. Manjit Kaur, and AIR 1993, Bombay, 160 Vinod Kumar Kejriwal v. Usha Vinod Kejriwal.
11. Similar view was expressed by another Bench of this Court in the case of Surita Singh v. Mahabir Singh, 1991(1) H.L.R. 489. In this case application filed by the wife challenging the ex parte order and making claim for maintenance was held to be maintainable and was granted. This expression appearing in Section 24 of the Act must receive liberal construction so as to achieve the object underlining the. various provisions of the Act. It may not be permissible nor possible to restrict the interpretation of this provision as suggested by the learned counsel for the petitioner as it would be at total variance to the object and a very foundation on which such social welfare legislations are enacted. The purpose is to prevent harassment and to grant maintenance, to a destitute spouse who is facing proceedings under the provisions of the Act or proceedings which are essentially arising or resultantly accruing from the provisions of the Act. The direct nexus between the provisions of the Act and the proceedings initiated by either spouse is established to the satisfaction of the Court who normally claim for maintenance by a spouse satisfying the provisions of Section 24 of the Act would be tenable.
12. The synaptic analysis of the above discussion and case law, clearly persuades me to predicate the above enunciated principle of law. Any approach based on the arguments of the learned counsel for the petitioner to my mind would be an Utopian one, viewing the provisions and the scheme of this Act from any angle.
13. The learned counsel for the petitioner in order to substantiate his submissions has relied upon the judgments of the Jammu and Kashmir in the case of Amrit Lal Nehru v. Usha Nehru, AIR 1982 J&K 98 and Smt. Rachna Sharma v. Chandra Mohan Sharma, AIR 1984 Allahabad, 302.
14. It needs to be pointed out that the Full Bench of the Jammu and Kashmir (Supra) was primarily not concerned with the question raised in this petition. The Hon'ble Judges were concerned with the two questions recorded in paragraph 9 of the judgment. Some observations have been made by the majority view of the judgment. In paragraph 18 of the judgment the view so expressed was dissented by the third Hon'ble Judge (Shri Mufti Baha-ud-din Farooqi, Acting Chief Justice) who preferred to adopt the view expressed by this Court in AIR 1979 P&H 211, Amrik Singh v. Smt. Narinder Kaur, and 1963 Punjab 249 Dr. Tarlochan Singh v. Ghanya Singh, Consequently, I would prefer to follow the view expressed by this Court in its earlier judgment. Thus, that case is of no help to the petitioner. In regard to the case of Smt. Rachna Sharma v. Chandera Mohan Sharma (Supra), for the reasons recorded by me above and the above view taken by the different courts with respect I express my inability to concur with the view expressed in this judgment.
15. Coming to the merits of the present case, in the grounds of revision itself it has nowhere been averred by the petitioner that he is not employed as a Sub Inspector in the Cooperative Department and that his carry home salary is not Rs. 2800/-plus. In fact, the learned counsel while arguing the matter also did not dispute these two facts. It is not the case of the petitioner even in the revision petition that respondent is having any independent source of income which could form the basis for rejection of an application Under Section 24 of the Act. On the contrary, if the al legations in the petition are taken to be correct, the respondent is a person mentally ailing. The income and status having not been disputed, I do not find any reason to interfere with the impugned order on the grounds of quantum of maintenance and litigation expenses being excessive.
16. In view of my discussion above, both the contentions of the learned counsel for the petitioner are hereby rejected. This petition is dismissed with costs which are assessed at Rs. 1,500/-.