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2006 DIGILAW 736 (PAT)

Anish Ranjan v. Reeta Kumari

2006-08-21

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ORDER I.A. No. 2227 of 2006 1. This interlocutory petition has been filed by the opposite party for a direction to the petitioner for payment of an interim maintenance and litigation cost to the opposite party during the pendency of the civil revision application in compliance of order, dated 2.8.2005, passed by the Principal Judge, Family Court, Patna, in Misc. Case No. 2 of 2003. The civil revision application has been admitted for hearing, but no stay has been granted, so far the impugned order is concerned, as such, the petitioner must pay the arrears as well as month to month payment of ad interim maintenance and the litigation cost. 2. Petitioner in the civil revision application is the husband of opposite party, who had filed Matrimonial Case No. 207 of 2001 under Section 13 of the Hindu Marriage Act for dissolution of his marriage with the opposite party, Reeta Kumari, by a decree of divorce. Opposite party appeared, but she did not contest the case by filing written statement and ex parte judgment and decree was passed whereby the marriage in between Anish Ranjan (petitioner) and Reeta Kumari (opposite party) was dissolved by a decree of divorce. Opposite party filed Misc. Case No.2 of 2003 under Order 9 Rule XIII of the Civil Procedure Code for setting aside ex parte divorce, judgment and decree. In this Miscellaneous case, opposite party filed an application under Section 24 of the Hindu Marriage Act for grant of ad interim maintenance and litigation cost. This application was contested by the petitioner stating that after passing of the divorce decree, unless appeal or miscellaneous case is allowed and ex parte decree is set aside, there is no relationship of husband and wife between the parties. The opposite party can not claim any maintenance under Section 24 of the Hindu Marriage Act, 1955, only husband or wife can claim for maintenance pendente lite under Section 24 of the Hindu Marriage Act since, proceeding under Hindu Marriage Act has already reached its finality and proceeding under Order 9 Rule 13 of CPC is not continuation or earlier suit no order under Section 24 of the Hindu Marriage Act can be passed. Proceeding under Order 9 Rule 13 is an independent proceeding the petitioner can not be directed to make payment of ad interim maintenance amount and the litigation cost. 3. Proceeding under Order 9 Rule 13 is an independent proceeding the petitioner can not be directed to make payment of ad interim maintenance amount and the litigation cost. 3. The Principal Judge, Family Court, Patna, by impugned order allowed petition under Section 24 of the Hindu Marriage Act and directed the petitioner to make payment of Rs. 10,000/- per month as ad interim maintenance and Rs. 10,000/- as litigation cost in one lump sum to the opposite party with a direction to deposit arrears of maintenance and litigation cost within fifteen days of the order. 4. Rejoinder to interlocutory application has been filed by the petitioner. 5. The point for consideration is, whether proceeding under Order 9 Rule 13 for setting aside ex parte decree of divorce dissolving marriage, is a proceeding under Hindu Marriage Act, an order under Section 24 of the Hindu Marriage Act is maintainable in such proceeding. Section 24 of the Hindu Marriage Act, 1955, deals with maintenance pendente lite and expenses of proceeding. In any proceeding order this Act, if husband or wife files an application and the Court is satisfied that either the wife or the husband has no independent income sufficient for her or his support and the necessary expenses of the proceeding, may, order the husband/wife to pay the expenses of the proceeding and reasonable monthly maintenance to the applicant during the proceeding having regard to the income of the parties. 6. Counsel for the petitioner has submitted that since parties are no more husband and wife such applications are not maintainable, proceeding under Order 9 Rule 13 of the Civil Procedure Code is not the continuation of the suit. It is an independent proceeding. Unless such the ex parte order is set aside, matrimonial suit, is restored, no order under Section 24 of the Hindu Marriage Act can be passed. 7. The Hindu Marriage Act lays down some procedural and jurisdictional rules. The Code of CPC also made applicable to the matrimonial proceedings as supplemental to the rule laid down in the Act. The provisions of the Hindu Marriage Act over ride the provisions of CPC and are applicable only when they are not inconsistent to the provisions of Act. 7. The Hindu Marriage Act lays down some procedural and jurisdictional rules. The Code of CPC also made applicable to the matrimonial proceedings as supplemental to the rule laid down in the Act. The provisions of the Hindu Marriage Act over ride the provisions of CPC and are applicable only when they are not inconsistent to the provisions of Act. Section 21 of the Act runs as under : "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, the provisions under this Act shall be regulated as far as may be, by the Code of CPC." 8. Since there is no independent provision for setting aside an ex parte decree of divorce under the Hindu Marriage Act, as provided under Section 21 of the Hindu Marriage Act provisions under Civil Procedure Code will have application for setting aside the ex parte decree. Though it is a proceeding under CPC but in a sense it is a proceeding under Section 21 of the Hindu Marriage Act. This view is supported by the decisions reported in AIR, 1989 Bombay 146 (Hemraj Shamrao Umredkar Vs. Smt. Leela), AIR 1985 Delhi, 40 (Rishi Dev Anand Vs. Smt. Devinder Kaur). 9. In AIR 1989 Bombay, 146, it has been held “Section 21 of the Hindu Marriage Act engrafted the relevant provisions of the Code of Civil Procedure into the Act for regulating the procedure and independent of Section 21 the Civil Procedure Code would have no application. Therefore, though the procedure setting aside the ex parte decree would be regulated by the Civil Procedure Code it would only be a proceeding under the Act by virtue of Section 21 of the Act. An application for interim maintenance is, therefore, maintainable. In AIR 1985 Delhi, 40, it has been held under the Act no provision has been made for setting aside the ex parte decree. Necessarily, therefore, recourse has to be taken to the provisions of the Code of Civil Procedure for this purpose. It a spouse has to make an application after a decree under the Act has been passed provisions of Order 9 Rule 13 of the Code in view of Section 21 of the Act are attracted. Necessarily, therefore, recourse has to be taken to the provisions of the Code of Civil Procedure for this purpose. It a spouse has to make an application after a decree under the Act has been passed provisions of Order 9 Rule 13 of the Code in view of Section 21 of the Act are attracted. Such a proceeding under Civil Procedure Code for setting aside ex parte decree passed under the Act is a proceeding under the Act and during the pendency of such proceeding an application under Section 24 is maintainable”. Similar view has been taken by the Full Bench of Andhra Pradesh High Court in AIR 1959 AP, 49 (Annapurnama Vs. J. Ramkrishna). 10. However, counsel for the petitioner, Dr. Ravi Ranjan, has placed reliance on a decision reported in 1991 (1) PLJR 119 (Sri Mishri Lal Yadav Vs. Budhdeo Yadav). This order was passed while considering the maintainability of an application under Section 15 of the BBC Act in proceeding under Order 9 Rule 13 of the Civil Procedure Code. Finding recorded in this decision has special application to the provisions of the B.B.C. Act. The finding recorded is "The Act is a complete Code in itself. The legislature under Section 15 contemplates only a preliminary enquiry in regard to the relationship of landlord and tenant between the parties. In the ex parte decree the relationship between the parties has already been accepted by the Court. In my view the legislature never intended to have another preliminary enquiry under Order 9 Rule 13 of the Civil Procedure Code after the decision of the suit, though ex parte. The mere preference of an application under Order 9 Rule 13 of the Code can not put the ex parte decision in abeyance and the decree shall be operative and effective against such an applicant". So far the Hindu Marriage Act is concerned, there is specific provisions under Section 21 of the Hindu Marriage Act which regulates the relevant provision of the Code of Civil Procedure into the Act. Independent of Section 21 the Civil Procedure Code would have no application. So far the Hindu Marriage Act is concerned, there is specific provisions under Section 21 of the Hindu Marriage Act which regulates the relevant provision of the Code of Civil Procedure into the Act. Independent of Section 21 the Civil Procedure Code would have no application. There is no such provision under the Bihar Building Control Act considering the regulatory provisions under Section 21 of the Act, proceeding under Order 9 Rule 13 of the Civil Procedure Code will be regulated by Section 21 of the Hindu Marriage Act and the setting aside of the ex parte decree will also be a proceeding under the Hindu Marriage Act. So far the existence of relationship of husband and wife is concerned, the expression wife and husband denotes the person who can claim maintenance. The expression is not to be given strict literary meaning as to convene only legally married wife and the husband. The expression wife and the husband in the context of this Section and scheme of the Act should mean a person claiming to be a wife or husband. The Hindu Marriage Act confers wide powers on the matrimonial Court so as to regulated the matrimonial relationship between the parties and such powers can be exercised even in a case of alleged or proved invalid marriage. For the purpose of exercise of these powers the Courts have been empowered to fix interim maintenance to one of the needy spouse so as to sustain herself/himself during the pendency of the proceeding in the Court and to meet the expenses of the litigation. It is with this object Section 24 of the Hindu Marriage Act has been enacted. Even if the petitioner and the opposite party are ceased to be husband and wife on the basis of ex parte decree of divorce, but, so far Section 24 of the Hindu Marriage Act is concerned, it is duly applicable in the case of opposite party, who claims to be the wife of petitioner. 11. In view of Section 21 of the Act, the petition under Section 24 of the Act is maintainable in a proceeding under Order 9 Rule 13 of the Civil Procedure Code. 11. In view of Section 21 of the Act, the petition under Section 24 of the Act is maintainable in a proceeding under Order 9 Rule 13 of the Civil Procedure Code. Since no stay has been granted by this Court while admitting the civil revision application, the petitioner must pay arrears ad interim maintenance and month to month maintenance as litigation cost to the opposite party in compliance of the order passed by the Principal Judge, Family Court, Patna. 12. Accordingly, I.A. No. 2227 of 2005 is allowed.