V. Gnanasekaran vs Maheswari @ Banu

G. Rajasuria, J.—Inveighing the order dated 14.10.2009, passed in I.A. No. 586 of 2008 in HMOP No. 1536 of 2001 by the Principal

Family Court, Chennai, this civil revision petition is focussed.

Heard both sides.

A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this revision petition would run thus:

The revision petitioner filed O.P. No. 1536 of 2001 seeking divorce as against the respondent in this case. During the pendency of the said O.P.

an application under Sections 24 and 26 of the Hindu Marriage Act, 1955 was filed and interim maintenance was awarded. It appears there were

arrears in paying maintenance. Subsequently, the Family Court dismissed the O.P. for default. Thereafter, I.A. No. 586 of 2008 was filed u/s 5 of

the Limitation Act to get the delay of 1161 days condoned in filing the application to get the dismissed O.P. restored to file. Whereupon, the

Family Court vide the order dated 14.10.2009, mandated that on payment of Rs. 50,000/- on or before 05.11.2009, already awarded towards

arrears of interim maintenance, the delay would be condoned. However, such payment was not made. But this revision has been filed on various

grounds, the gist and kernel of them would be to the effect that the condition imposed by the lower Court in condoning the delay was onerous and

not in accordance with law.

The learned Counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that if at all

the respondent in interested in recovering the arrears of maintenance as per law, it is open for her to initiate appropriate proceedings and in fact,

already E.P. also is pending and she has filed one other M.C. u/s 125 Cr.P.C. claiming maintenance. Accordingly, the learned Counsel for the

petitioner prays for setting aside the alleged onerous condition imposed by the lower Court.

Whereas, by way of torpedoing and pulverising the arguments as put forth on the side of the learned Counsel for the petitioner, the learned

Counsel for the respondent would advance her argument, the warp and woof of them would run thus:

Even though the matter was pending for a pretty long time before the Family Court and that the order of maintenance was ordered as early as on

14.11.2003, only a small amount was paid towards maintenance and subsequently, arrears got mounted and exceeded even rupees one lakh.

However, the Family Court in the present order directed only a part of the arrears to be paid and not even the full arrears. Accordingly, the

learned Counsel for the respondent prays for the dismissal of the revision on the ground that no mercy need be shown to such a defaulter.

The point for consideration is as to whether the condition referred to supra, imposed by the Family Court is onerous?

I would recollect and call up the decision of this Court reported in Hema Vs. Parthasarathy, , an excerpt from it would run thus:

The decision of the Supreme Court reported in Hirachand Srinivas Managaonkar v. Sunanda (2001) 2 CTC 185 certainly will not stand in the

way, since in that case it was not the contention of the aggrieved party that by invoking Section 151 of Civil Procedure on the default made by one

of the party, the original petition cannot be dismissed or the defence struck off, as the case may be. It has to be borne in mind the Court has not

ruled that only if the husband has done a ''wrong'' as contemplated u/s 23(1)(a), then alone the original petition can be dismissed or the defence can

be struck off, as the case may be. In that case, the Court has only considered as to when it can be said that the husband has committed ''wrong'' as

contemplated u/s 23(1)(1) of the Hindu Marriage Act.

As such, the judgment would speak by itself that in various modes the arrears of maintenance could be enforced. It is not necessary that only E.P.

has to be filed for recovering the interim maintenance. The Court has got even power to stop further proceedings, if the person who is liable to pay

maintenance is the petitioner and his defence could be struck off if the person liable to pay maintenance is the respondent. When such is the legal

position, I could see no illegality or infirmity on the part of the Family Court in imposing such a condition that the payment of arrears of maintenance

shall be sine quo non for condoning the huge delay of 1161 days.

However, the learned Counsel for the revision petitioner would implore and entreat by echoing the cre de coeur of his client that he could not

pay such huge sum of money all of a sudden and he requires sufficient time for payment. Whereas, the learned Counsel for the respondent would

submit that even very granting of any further time would be deleterious to the welfare of the respondent.

Considering the pro et contra, I am of the view that time could be extended for payment of the said sum imposed by the lower Court and as

such, by the end of August 2010, the entire cost awarded shall be paid. Whereupon, the Family Court shall number the application under Order 9

Rule 9 CPC for restoration and dispose of it within a week. On restoring the main O.P., the Family Court shall do well to see that within a period

of three months thereafter, the OP itself is disposed of on merits. If there is default in paying the amount even as per this order, then this order will

not enure to the benefit of the revision petitioner.

Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.