I. Raju vs Devaki

Sathiadev, J.—Petitioner is the husband of the respondent. He filed O.P. 212 of 1979 for divorce on the ground that the respondent had committed adultery. They were married on 12.10.1970 and three children aged 3, 7 and 8 years in 1979 was born to them On 3.11.1978, he found her in the company of one Vijayakumar, and on being taken to task, she left the house. Later on, she took away the children without his knowledge He had filed a complaint under S. 497, I.P.C. against Vijayakumar and the matter is pending disposal. The wife refuted each one of the imputations made against her and claimed, that, till 6.2.1979, she had lived with petitioner, and that she was driven out of the house on that day along with the other two children, and she had to stay in a friend's house and sent a telegram to her father and ultimately left for Cuddalore on 8.2.1979. During the pendency of the O.P. she filed I.A. 4789 of 1983 under S. 151, C.P.C. to stay all further proceedings in the main O.P. till the arrears of maintenance and litigation expenses are paid. In I.A. 18868 and 18869 of 1980 on 3.4.1981, an order was passed fixing her monthly maintenance at Rs. 100 and the legal expenses at Rs. 500. Aggrieved against the said order, C.R.P. 4261 of 1981 was filed, and it was dismissed on 20.4.1983. To this date, no amount had been paid by the husband. Hence she filed the present revision petition to stay the further hearing of the O.P.

This was opposed by the husband by claiming that he had obtained an order in I.A. 6114 of 1979 for interim custody of the two minor sons, and it was ordered on 20.6.1979, and since she had not complied with the directions of court, for this contumacious conduct on her part she would not be entitled to the invocation of S. 151, C.P.C. and seek for stay of trial of O.P. It is also claimed that in the criminal proceedings instituted, a finding having been given that she was leading an adulterous life and her petition in M.C. 1264 of 1979 for maintenance having been rejected, she is not entitled to maintain the present petition.

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.

The one and the only objection to the grant of relief under this petition is that, she being guilty of contumacious conduct in not complying with the directions of the Court below in I.A. 6114 of 1979, she cannot plead for equity by invoking S. 151, C.P.C. She would state that, it was an order secured behind her back, and because of her penury and inability to engage a counsel from time to time, she could not get the order revoked, and that she had to approach the Legal Committee and contest the matter with considerable odds against her. If any he had paid both maintenance and legal expenses, she could have got that order revoked. The order for payment of maintenance was passed on 3.4.1981. It is a fact that even earlier to it, on 20.6.1979, order regarding custody of the minor children was passed. The petition to stop the trial of the proceedings was filed on 10.2.1983. As to what prevented him from paying any maintenance what so ever, is not satisfactorily explained. He had not paid any maintenance whatever even for the minor children; he had never disputed their parentage. All these go to show that he is only bent upon depriving his wife and the children of their right to be maintained out of his earnings.

Mr. Sundararajan, learned counsel for the husband in his lengthy and strenuous submissions, would state that the spouse, who got an order of interim maintenance is never enthusiastic in the disposal of main O.Ps. and when maintenance was payable only during the pendency of proceedings, the periods during which the O.Ps. are allowed to be dismissed for default, and later on restored, should be excluded, and that a woman who had committed adultery could never claim to be maintained by her husband during the pendency of the O.P.

Though a Criminal Court rejected her plea for payment of maintenance, it is a fact that in C.R.P. 4261 of 1981, the right to get maintenance under S. 24 had been upheld, and hence he has to pay as ordered. It is a statutory right which cannot be avoided by any other fact or under any other pretext. He refers to Navaneethan v. Krishnamurti Naidu 1974 T.L.N.J. 47 which deals with power of court to stay proceedings, when an order to pay maintenance pendente lite is not complied with. Relying on this he submits that a party in a proceeding, who wilfully disobeys order of court, cannot get an equitable order for stay of trial of O.P. But in this matter what petitioner attempts is to avoid an order, which he is bound to comply with. For, what she is alleged to disobey, separate maintenance can be taken. As a counter blast he cannot get approval of court, for his disobedience.

Failure to pay maintenance is a noncompliance of statutory requirement under S. 24 of the Act. It is the right conferred on a spouse under the statute, provided valid circumstances are made out. Her right to get maintenance had been already recognised in C.R.P. 4261 of 1981. This statutory right acquired by her cannot be taken away, because of non-compliance of any of the orders obtained by the husband regarding other aspects. It is for him to take suitable proceedings against her for non-compliance of order of court, if any. She is already a much harassed woman and compelled to maintain the children born to him. He had not evinced any interest for the welfare of the minor children. Nothing prevented him from making prompt payment every month for their maintenance, till he gets custody through Court. Learned counsel appearing on her behalf, submits, that the order obtained by him being ex parte, even now if the Court below, so considers, it could examine the minor children, and decide as to who should be in custody, and dependent on it as to how far he would be liable to pay maintenance thenceforth. As for the point taken that after obtaining order for interim maintenance, proceedings are protracted, each case will have to be decided on its own merits. For protraction of proceedings, no single factor exist and any party to a proceedings indulges in it, according to his conveniences and requirements.

The other point taken is that, for periods during which the O.P. gets dismissed ,and later on restored, no maintenance could be payable. S. 24 states that interim maintenance could be ordered during pendency of proceedings. Whenever a proceeding in a court gets restored, the intervening period is always considered as continuance of the proceedings. It is the original proceeding which gets restored, and not a new proceeding which comes into existence.

Therefore, the order of the court below, that till the entire arrears of maintenance upto the date of payment is paid, there is no other alternative than to stay the main O.P. is correct. As for the directive given in I.A. 4789 of 1983, on receipt of the entire arrears of maintenance till date of payment, the respondent will have to produce the minor children before court, which will have to examine them and decide as to in whose custody, they should be kept bearing in mind the welfare of the minor children. After the order passed in 1979 for their custody, eight long years have rolled by, and therefore, the change of circumstances will have to be taken into account by the court. Hence, she is granted four weeks time from the date of receipt of the amount representing arrears of maintenance, for prosecution of the children before court and after examining them, it is for the court to decide about custody, and in the event of the court deciding to give custody of the children to the husband, and if she fails to comply with within two weeks from the date of the said order, then her defence will be struck down. It is with these directions, the revision petition is dismissed with costs. Counsel's fee Rs. 150.