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2002 DIGILAW 405 (CAL)

Ranu Roy v. Pradip Kumar Roy

2002-06-21

Subhro Kamal Mukherjee

body2002
Judgment Subhro Kamal Mukherjee, J. This is a revisional application against an order dated August 7, 2001 passed by Mr. R.K. Dutta Chowdhury, learned Additional District Judge, Fifth Court at Barasat, District: 24 Parganas (North) in Matrimonial Suit No. 39 of 2001 whereby the prayer of the wife/defendant for stay of the suit filed by the husband was rejected accepting the view that order passed under section 24 of the Hindu Marriage Act, 1955 could be executed like money decrees as prescribed under Rule 30 of Order 21 of the Code of Civil Procedure. 2. Matrimonial Suit No.196 of 1996 was instituted by the husband, inter alia, on the ground of cruelty in the court of the learned District Judge at Barasat, District: 24 Parganas (North), which has been eventually transferred to the court of the learned Additional District Judge, Fifth Court at Barasat, District: 24 Parganas (North) and has since been renumbered as Matrimonial Suit No. 39 of 2001 in the said court. 3. In the said suit the wife filed an application under section 24 of the Hindu Marriage Act, 1955 on November 30, 1994 claiming maintenance pendente lite at the rate of Rs.3,000/- (Rupees three thousand) only per month and for a sum of Rs.5,000/- (Rupees five thousand) only towards expenses of the proceedings. 4. By Order No. 50 dated September 25, 2000 the learned Additional District Judge, First Court at Barasat allowed the said application in part and directed the husband to pay to the wife a sum of Rs.2,000/- (Rupees two thousand) as maintenance pendente lite per month with effect from the date of filing of the said application and to pay a, further, sum of Rs.3,000/- (Rupees three thousand) only towards the expenses of the proceedings in lump. The husband was granted liberty to liquidate the arrears at the rate of Rs.1,000/- (Rupees one thousand) only per month and he was, further, directed to pay the said instalments along with the current maintenance till the realisation of the entire arrear amount. It was directed that the litigation cost should be paid within three months from the date of the said order. 5. It was directed that the litigation cost should be paid within three months from the date of the said order. 5. The wife on July 20, 2001 filed a statement, inter alia, indicating that as on June 30, 2001 a sum of Rs.96,551/- (Rupees ninety six thousand five hundred fifty one) only was due and payable by the husband to the wife in terms of the order dated September 25, 2001. It was, therefore, prayed that till all the arrears arc liquidated, the matrimonial suit should remain stayed. 6. The learned Additional District Judge, inter alia, accepted the contentions of the husband that in view of the fact that an order passed under section 24 of the Hindu Marriage Act, 1955 could be executed like money decrees with the procedures as laid down in Rule 30 of Order 21 of the Code of Civil Procedure, such the prayer for stay of the suit should be rejected. 7. Being aggrieved the wife/petitioner has come up with this revisional application. 8. Mr. Pinaki Ranjan Mitra, learned advocate, appearing for the wife/petitioner, submitted that the learned Judge in the trial court acted illegally and with material irregularity in the exercise of his jurisdiction in considering the prayer for stay made by the wife on account of non-payment of the entire amount as directed by the Order No. 50 dated September 25, 2000 and in relegating the wife to the difficult path of execution proceeding. In this connection Mr. Mitra cited the well-known decision in the case of Shrimati Anita Karmokar and Anr. vs. Birendra Chandra Karmokar, reported in AIR 1962 Calcutta 88. 9. Mr. Bidyut Kumar Banerjee, learned senior advocate, appearing for the opposite party, argued that in view of incorporation of section 28A of the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976, the learned Judge in the trial court was justified in not granting stay of the suit on account of arrears payable under order dated September 25, 2000. However, it is not disputed before me that the husband has not yet liquidated the entire arrear maintenance pendente lite. 10. The concept envisaged under section 28A of the Hindu Marriage Act, 1955 was not foreign in the Hindu Marriage Act, 1955 as it stood before the amendment of the said Act by the Marriage Laws (Amendment) Act, 1976. 11. However, it is not disputed before me that the husband has not yet liquidated the entire arrear maintenance pendente lite. 10. The concept envisaged under section 28A of the Hindu Marriage Act, 1955 was not foreign in the Hindu Marriage Act, 1955 as it stood before the amendment of the said Act by the Marriage Laws (Amendment) Act, 1976. 11. Section 28 of the Hindu Marriage Act, 1955 as it stood before the amendment, was as under: "28. Appeal from decrees and orders.-All decrees and orders made by the court in any proceeding under this Act shall be enforced in like manner as the decrees and orders of the court made in the exercise of the original civil jurisdiction are enforced, and may be appealed from under any law for the time being in force: Provided that there shall be no appeal on the subject of cost only." 12. Under section 19 of the Marriage Laws (Amendment) Act, 1976, the existing section 28 of the Hindu Marriage Act, 1955, has been substituted by inserting two sections, namely, sections 28 and 28A. 13. Section 28A runs as under: "28A. Enforcement of decrees and orders.-All decrees 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 of its original civil jurisdiction for the time being are enforced." 14. In the case of Shrimati Anita Karmokar (supra) Binayak Nath Banerjee, J. observed "it was strongly contended before me that the wife-petitioner could enforce the order made under section 24 of the Act only by way of execution of the order and that the husband-opposite party could not be compelled to pay by ordering stay of the proceeding for restitution of his conjugal rights with the petitioner. The path of execution is not an easy going high way and provides no short-cuts to the destination. The path of execution is not an easy going high way and provides no short-cuts to the destination. In the case of General Manager of Raj Durbhanga vs. Ramput Singh, 14 Moo Ind App 605 (612) the Privy Council very rightly observed-'Difficulties of a litigant in India begin when he has obtained a decree.' To relegate one to that difficult and risky path-way, even for realisation of the litigation expenses, without staying the hearing of the matrimonial suit, may result in the suit itself being heard out before the expenses may be realised by process of execution. Therefore, to hold that the levying of execution is the only remedy for enforcement of an order made under section 24 may result in making such order wholly nugatory and ineffective." 15. In view of such clear pronouncement by this court, the point raised by Mr. Banerjee can never be accepted. 16. Moreover, a Division Bench of this court in the case of Uday Kumar Paul vs. Shrimati Mira Paul, reported in 1993 (2) CLJ 437 , held "Section 24 of the Hindu Marriage Act vests the defendant-spouse with a special right to apply for maintenance pendente lite and litigation expenses in a matrimonial suit. The statute gives this right for the protection of the spouse concerned and to enable her/him to survive and contest the litigation. It has a social implication and justice demands that Courts should be astute in preserving the same in the absence of compelling circumstances beyond its control. The statute, also, as the language of the section indicates, contemplates the passing of an Order in terms of the section, for maintenance pendente lite or litigation expenses, during the proceeding and thus implies the disposal of the application in the suit itself. It is well known, too, that Courts exist for doing justice and securing the ends of justice and, necessarily, therefore, for that purpose, it is entitled to arrange its business in a manner, which will sub-serve that purpose and promote the achievement of that object." 17. In Rayden and Jackson on Divorce (15th Edition, 1988) it has been observed that "if a husband who has been ordered to pay maintenance pending suit or costs to his wife neglects to do so, she may apply to have the petition dismissed, or to have the suit stayed." 18. In Rayden and Jackson on Divorce (15th Edition, 1988) it has been observed that "if a husband who has been ordered to pay maintenance pending suit or costs to his wife neglects to do so, she may apply to have the petition dismissed, or to have the suit stayed." 18. The learned Additional District Judge, therefore, applied wrong legal tests in considering the prayer for stay of the suit made by the wife and illegally rejected the said prayer on a misconception of law on the subject. 19. I, therefore, set aside the order impugned and allow the prayer made by the wife for stay of the suit. There will be stay of all further proceedings in Matrimonial Suit No. 39 of 2001 pending in the court of the learned Additional District Judge, Fifth Court at Barasat, District: 24 Parganas (North) till the all arrears are paid by the husband to the wife in terms of the Order No. 50 dated September 25, 2000. 20. The revisional application is, thus, allowed without, however, any order as to costs. 21. The office is directed to communicate a copy of this order to the learned trial Judge at the cost of the office forthwith. 22. Xerox certified copy of this order, if applied for, is to be supplied to the parties on urgent basis. Revisional application allowed.