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2008 DIGILAW 1376 (RAJ)

Sanjay Kumar Soni v. Smt. Shikha Soni

2008-05-16

H.R.PANWAR

body2008
JUDGMENT 1. - By the instant writ petition under Art. 227 of the Constitution of India, the petitioner has challenged the order Annx.10 dated 26.02.2008 passed by the learned District Judge, Banswara. 2. The facts and circumstances giving rise to the instant writ petition are that the petitioner filed an application before the District Judge, Banswara under Sec. 13 of the Hindu Marriage Act, 1955 (for short, "the Act, 1955" hereinafter) seeking dissolution of the marriage against the respondent. On service of the notice, the respondent appeared before the learned District Judge and filed an application under Sec. 24 of the Act. By the order dated 05.05.2003 (Annx.1), the application filed by the respondent was allowed and interim monthly allowance of maintenance @ Rs.1000/- in favour of respondent who is the wife of the petitioner and @ Rs.500/- per month in favour of the minor son, was granted during pendency of the proceedings as also the expenses and counsel's fee of Rs.2000/-. The petitioner was directed to pay the said amount to the respondent and her minor son. The facts that the respondent is the legally wedded wife of the petitioner and the son was born out from that wed-lock, have not been disputed by the petitioner. Despite the order of the learned District Judge, the petitioner failed to pay the interim monthly allowance of maintenance as also the expenses and counsel's fee to respondent. On an application Annx.2 filed by the respondent, the learned District Judge passed the impugned order Annx.10 for realising the amount by execution. Hence this writ petition. 3. I have heard learned counsel for the petitioner. 4. It is contended by the learned counsel for the petitioner that Section 28-A of the Act provides enforcement of a decrees and orders and the case in hand does not come within the purview of Section 28-A of the Act. Section 28-A of the Act provides that all decrees and orders made by the Court in any proceeding under this Act shall he enforced in the like maimer as the decrees and orders of the Court made in exercise of its original civil jurisdiction for the time being are enforced. Section 28-A of the Act provides that all decrees and orders made by the Court in any proceeding under this Act shall he enforced in the like maimer as the decrees and orders of the Court made in exercise of its original civil jurisdiction for the time being are enforced. Thus, the decree and the order in the original jurisdiction by the Court under the provisions of the Act are enforceable in the like manner as the decree or order of the Civil Court made in exercise of its original jurisdiction. 5. Learned counsel for the petitioner has relied on a decision of the Bombay High Court in Vanmala v. Maroti Sambhaji Hatkar, AIR 1999 Bom. 388 , wherein it has been held that a matrimonial Court can, in exercise of its powers under Sec. 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 granting interim maintenance to wife by Court. There is a power in the Court to make such orders as may be necessary for the ends of justice and to prevent any abuse of process of the Court. Thus in the instant case Matrimonial Court, was under duty to invoke the inherent powers under Sec. 151 of the Civil Procedure Code and should have complied the erring husband to deposit whole of the arrears of interim alimony and the expenses of the proceedings in the Court within certain point of time. If in inspite of passing of such order. If the party under liability flouts the order deliberately, the Court can stay the petition or the proceedings of divorce if the erring party is a petitioner. 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. 6. The decision relied on by the learned counsel for the petitioner is of no help to the petitioner as it turns on its own facts. Even otherwise, the Bombay High Court has held that the Court passing the order has power under Sec. 151 CPC to get its orders enforced if the party flouts such order by not paying the arrears of the interim maintenance. Even otherwise, the Bombay High Court has held that the Court passing the order has power under Sec. 151 CPC to get its orders enforced if the party flouts such order by not paying the arrears of the interim maintenance. Thus, the power to get the order enforced not only by way of executing the order under Sec. 28-A of the Act, hut even the Court can exercise the powers under Sec. 151 CPC and get the orders enforced. The decision relied on by the learned counsel for the petitioner does not lake away the power of the Court to gel its orders enforced under Sec. 28-A of the Act by executing the orders as if the order has been passed in the civil original jurisdiction of that Court. 7. In the circumstances, therefore, in my view, the learned District Judge was justified in getting the order enforced by initiating the execution proceedings. The aim and object of Section 24 of the Act is that where in any proceeding under this Act it appears to the Court that either the wife or the husband, as the case may be, has 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 proceedings, and monthly maintenance allowance 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 he reasonable. The provisions of Section 24 of the Act provides for support to be given by the earning spouse in favour of non-earning spouse during the pendency of proceedings before the Court. When the Court makes an order for grant of maintenance and expenses in favour of the wife who has no source of income to support her and her minor son as also to defend the proceedings initiated against her by her husband then the Court making such an order for such allowance of interim maintenance and expenses cannot be said to be a powerless to enforce its own order. If the Courts are considered to be powerless to enforce its own order in such a matters then passing of such orders would be nothing more than a futile exercise. If the Courts are considered to be powerless to enforce its own order in such a matters then passing of such orders would be nothing more than a futile exercise. In this view of the matter, I do not find any good ground to interfere with the order impugned. 8. The writ petition is, therefore, dismissed summarily; however there shall be no order as to costs.Writ Petition Dismissed. *******