Madras High Court
Mukesh Jain vs Koushalya on 2 September, 2024
C.R.P.(PD).No.3059 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.3059 of 2024
Mukesh Jain .. Petitioner
Versus
Koushalya .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the fair and decretal order, dated 06.07.2024 passed in
I.A.No.5 of 2024 in O.P.No.3852 of 2015 by the learned VI Additional
Principal Judge, Family Court, Chennai.
For Petitioner : Mrs.S.P.Arthi
For Respondent : Mr.N.Seshadri
ORDER
This Civil Revision Petition arises against the order passed by the
learned VI Additional Principal Judge, Family Court at Chennai in I.A.No.5
of 2024 in O.P.No.3852 of 2015.
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2. O.P.No.3852 of 2015 was originally presented by the civil revision
petitioner/husband before the Family Court at Jodhpur as
C.O.C.(O.P).No.268 of 2006. He invoked Section 13A of the Hindu
Marriage Act, 1955. The said proceeding ended in an exparte decree of
divorce on 29.11.2008. Subsequently, by virtue of the orders passed by the
Supreme Court, C.O.C.(O.P).No.268 of 2006 and the petition filed to set
aside the ex parte decree stood transferred to the file of the VI Additional
Family Court, Chennai.
3. On transfer, the petition filed to set aside the ex parte decree was
re-numbered as I.A.No.1987 of 2016. This application was allowed by the
learned VI Additional Principal Judge, Chennai on 18.05.2022. Against
that order, the husband preferred a revision before this Court in
C.R.P.No.2773 of 2022. Finding that the reasons given by the wife make
out a case for setting aside the ex parte decree, I confirmed the order of the
learned Trial Judge in and by way of an order, dated 24.04.2024. At that
stage, I noticed that the parties have been litigating from the year 2006 and
are yet to see the end of the litigation, I directed the cross-examination of
P.W.1 to commence on 03.05.2024 and to be completed by 31.07.2024.
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Thereafter, the cross-examination of the husband was to commence from
05.08.2024 and to be completed by 30.11.2024. I fixed the time limit, by
the said order, taking into consideration that the status of the parties was
still in limbo for over a decade.
4. Apart from this proceeding, the wife had also initiated a proceeding
for maintenance invoking Section 125 of the Code of Criminal Procedure.
In the said proceeding, the Supreme Court had directed the husband to pay a
sum of Rs.20,000/- per month. In default, to strike out the defence of the
husband. It is not in dispute that the husband defaulted in payment of the
maintenance and therefore, his defence in M.C.No.413 of 2007 stood struck
off. After the order was passed by this Court on 24.04.2024, the parties
seem to have gone before the VI Additional Family Court, Chennai and
commenced the trial.
5. Mrs.S.P.Arthi, who represents the husband, represents that the
cross-examination of the wife in the petition filed by her for restitution of
conjugal rights in O.P.No.348 of 2011 has been completed. She would
plead that when the cross-examination of the wife was half-way through in
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O.P.No.3852 of 2015, the wife took out an application in I.A.No.5 of 2024.
The plea of the wife in I.A.No.5 of 2024 is that the husband had stopped
paying maintenance as directed under Section 125 of CrPC proceedings and
therefore, is not entitled to continue further in both the restitution of
conjugal rights proceedings as well as in the divorce proceedings initiated
by him.
6.After receipt of a counter from the civil revision petitioner/husband,
the learned Judge proceeded to pass an order on 06.07.2024 directing the
husband to deposit a balance of Rs.4,40,000/- into Court on or before June,
2024. In default, she ordered the pleadings and the defence of the
petitioner/husband in the pending Original Petitions to be struck off. The
court adjourned the matter to 19.07.2024 for reporting compliance. On
19.07.2024, as the husband did not come up with the amount of
Rs.4,40,000/-, the consequential order came to be passed. Aggrieved by the
order dated 06.07.2024, the present Civil Revision Petition has been filed.
7. Heard Mrs.S.P.Arthi, learned Counsel for the petitioner and
Mr.N.Seshadri, learned Counsel for the respondent.
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8. Mrs.S.P.Arthi would submit that the consequences of non-payment
of maintenance has already been felt by the husband since his defence in
M.C.No.413 of 2007 has been struck off. She would state that the husband
cannot be visited with the same consequences again in the matrimonial
proceedings initiated by him and that initiated by his wife.
9. Mr.N.Seshadri would submit that it is the direction of the Supreme
Court that the husband pays the maintenance and in default, his defence
must be struck off. He would submit that it matters not whether the
husband's defence is struck off in the maintenance case since the husband is
in default, he is liable to face the consequences of the order in all the
proceedings that are initiated between the husband and wife. He would also
bring to my notice that the husband had initiated an application before the
Supreme Court in Diary No.24861 of 2021 seeking for a prayer to stop
paying the interim maintenance. He would state that the said petition was
dismissed even at the diary stage itself on 03.02.2022 holding that the
request of the husband to not pay the maintenance is untenable. Therefore,
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Mr.N.Seshadri would submit that it is the duty of the husband to continue to
pay the maintenance to the wife pending disposal of the litigation.
10. In his second submission, Mr.N.Seshadri would state that the
order passed on 06.07.2024 is in the nature of an ex parte order and
therefore, the only solution for the civil revision petitioner/husband is to
prefer an application before the Trial Court either under Order IX Rule 7 or
under Order IX Rule 13 of the Code of Civil Procedure, 1908. He would
argue that the order of striking of is in the nature of "intense ex parte order"
and therefore, this Civil Revision Petition is not maintainable.
11. Insofar as the submission of Mrs.S.P.Arthi that, since her defence
in the Maintenance Case has been struck off, she cannot be called upon to
pay the maintenance by the wife in the present proceeding, is concerned, I
am not in agreement with her. I am in entire agreement with Mr.N.Seshadri
on this point.
12. It is the duty of the husband to pay the maintenance to the wife
pending disposal of matrimonial proceedings. It matters not whether it is
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under Section 24 of the Hindu Marriage Act, 1955 or under Section 125 of
the Code of Criminal Procedure or an order passed by a Civil or Family
Court invoking the provisions of Protection of Women from Domestic
Violence Act, 2005. The purpose of granting interim maintenance to a wife
is to ensure that she is able to survive the wrath of a litigation. The law
presumes and holds out a protective umbrella for the wife in the form of
interim maintenance so as to enable her to tide over the difficulties she faces
when not being provided for by her husband. As there are no other means
to grant this protection, if a maintenance is granted to a wife, then, the
amount that is given to her will help her to tide over the difficulties after
having been turned out of the matrimonial home.
13. I would look at it in another angle also. The wife, not earning any
money by herself, would find it difficult to litigate the matter on her own
steam. Hence, if maintenance is granted by the husband, it will level the
playing field between the parties. Because the husband being financially
well-off, the field is skewed. This skewed field is made even by directing
the husband to pay maintenance. Hence, the submission of Mrs.S.P.Arthi
that since her client has already suffered the consequences of non-payment
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of maintenance in the proceeding initiated under Section 125, the Court is
powerless to strike off the defence or to dismiss the petition for non-
payment of maintenance in the other connected proceeding, is without any
merits and stands rejected.
14. Now, turning to the point of Mr.N.Seshadri that the civil revision
petition is not maintainable since it is an ex parte order that has been passed
and the only remedy for the party is to approach the same Court by way of a
petition concerned. Here, I am not in agreement with Mr.N.Seshadri.
15. Both the Order IX Rule 7 and Order IX Rule 13 of the Code of
Civil Procedure operate on specifc grounds. In order to invoke Order IX
Rule 7 of the Code of Civil Procedure, the party must have suffered an order
setting him exparte. At that stage, the Court could have passed an ex parte
order or an ex parte decree. For the said purpose, when the case is "called
on for hearing", the defendant should not have put in appearance. In case he
appears, the Court cannot construe his presence as being absent and
thereafter set him ex parte. In fact, the learned Trial Judge has not adopted
any such means as argued by Mr.N.Seshadri. This is a simple case where
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the Supreme Court had fixed maintenance for the husband to pay and the
husband defaulted in payment of the same. Therefore, following the
practice that has been developed by matrimonial Courts, the defence of the
husband has been struck off and his divorce petition has been dismissed.
This does not fall under any of the categories as contemplated under the
Code of Civil Procedure.
16. On realising the consequences that he has been visited with for
non-payment of maintenance, if the husband comes forward with an
application or approaches a higher Court stating that he will pay
maintenance, then, the Court possesses the power to put the clock back if
the husband makes good his default.
17. I have searched the Code of Civil Procedure in vain and I am not
able to see any provision which speaks about "an intense" ex parte order.
This term seems to be one which has born out of legal ingenuity of
Mr.N.Seshadri. Since the code does not contemplate any such provision, I
am not in a position to accept the said argument.
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18. The result of this discussion is that if the husband defaults in
payment of maintenance, power is available to the Court to strike off his
defence in case it is the proceeding initiated by the wife or/and dismiss the
petition initiated by the husband.
19. I will treat such order in the nature of eclipse. The defence of the
husband and the right to prosecute the petition stands eclipsed as long as he
does not pay the maintenance. Once he realises his mistake or tides over the
financial difficulties that he is facing and comes forward with the payment,
then, it is the duty of the Court to ensure that the eclipse that has been
created by the procedure adopted by it, is removed. The advantage of the
wife is that the amount that she is legally entitled to stands credited to her
account. Therefore, it is neither an ex parte order nor is it an “intense ex
parte” order as put by Mr.N.Seshadri, but only a method developed by the
Court to ensure that the husband complies with the order of interim
maintenance.
20. Mr.N.Seshadri would submit that non-payment of maintenance
amounts to contempt of Court. An inability to pay an amount, whether it is
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artificial or natural, cannot be used as a tool for contempt. This is because a
party always has a remedy under the Code of Criminal Procedure to arrest
the husband for default in payment of maintenance and to strike off the
defence or dismiss his petition in civil proceedings. An order to pass money
cannot amount to contempt of Court. If this argument is stretched, then, any
defendant, who suffers a money decree, need not be proceeded against for
execution. All that the successful plaintiff would have to do is initiating
proceedings for contempt. I am aware that this is a logic of reductio ad
absurdum. Yet, I am still applying to the facts of this case because
Mr.N.Seshadri vehemently contends that the non-payment of maintenance
amounts to contempt of the orders passed by the Court. Having put these
two arguments behind me, I now turn to the present situation.
21. On 14.08.2024, I pointed out to Mrs.S.P.Arthi that when the
Supreme Court had confirmed the order of maintenance passed by the Trial
Court, it is the duty of her client to pay the maintenance. Though there was
some initial resistance from Mrs.S.P.Arthi, subsequently, wisdom had
dawned on her client and consequently, she has come forward to pay the
arrears of maintenance as claimed by the wife. She has brought forth the
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Demand Drafts drawn on I.D.F.C First Bank, Nungambakkam in
D.D.Nos.062361, 062362 and 062363 for a sum of Rs.2,00,000/-,
Rs.1,80,000/- and Rs.1,80,000/- respectively in all it amounts to
Rs.5,60,000/-. This figure is disputed by Mr.N.Seshadri.
22. Even in the order that had been passed by me on 14.08.2024, I had
made it clear that in case the wife is entitled to an additional amounts, the
same will be calculated by the learned Trial Judge at the time of disposing
of both the proceedings. This amount was directed to be paid, without
prejudice to the claim of the husband that he has paid an excess or to the
right of the wife stating that her husband is still liable to pay amounts apart
from the aforesaid figure. This amount is directed to be paid by the husband
only in order to restore his right of defence in O.P.No.348 of 2011 and to
prosecute his petition for divorce in O.P.No.3852 of 2015.
23. The timelines that had been fixed by me in the order in
C.R.P.No.2773 of 2022 will continue to hold good. The husband and the
wife shall co-operate for the disposal of the case. In case, the husband
defaults in payment of maintenance for subsequent periods, the Court shall
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take into consideration the order passed by it on 06.07.2024 and the order
passed by this Court today and pass appropriate orders in the proceedings.
Similarly, in case the Court gets a feeling that the wife is trying to drag on
the matter, as alleged by Mrs.S.P.Arthi and stoutly denied by
Mr.N.Seshadri, then, it shall invoke the provisions of Order 17 of the Code
of Civil procedure and enter upon a judgment.
24. The amount of Rs.5,60,000/- shall cover the period with the
month ending 31.10.2024. In case, the matter proceeds beyond October,
2024, the husband will be liable to pay the maintenance for those periods
also. In the mean time, as the right of the husband to cross-examine the wife
has been foreclosed and that is being set aside by this order, the husband
will commence the cross-examination on 03.09.2024 and complete it by
06.09.2024. Thereafter, the other proceedings shall follow. This order is
being passed in order to ensure that both the parties do not plead that they
did not get an opportunity of being cross-examined or letting in their
evidence before the Trial Court.
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25. When the Demand Drafts were tendered by Mrs.S.P.Arthi to
Mr.N.Seshadri, he pleaded that though he made his arguments at length, he
does not have the mandate to receive the Demand Drafts that have been
handed over. Hence, the civil revision petitioner/husband is entitled to
deposit the Demand Drafts taken by him to the credit of O.P.No.3852 of
2015 on the file of the VI Additional Principal Family Court at Chennai. On
such deposit, the wife is entitled to withdraw the same, if she so desires, by
filing a petition for withdrawal. If the wife files such a petition,
Mrs.S.P.Arthi says that she will have “no objection” for the same.
26. In fine, this Civil Revision Petition stands allowed. The order,
dated 06.07.2024 in I.A.No.5 of 2024 in O.S.No.3852 of 2015 on the file of
the learned VI Additional Principal Judge, Family Court, Chennai is set
aside since the husband has paid the arrears of maintenance as calculated by
the wife till October, 2024. The learned Trial Judge is requested to give an
opportunity to the parties as stated supra. No costs.
02.09.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
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To
The VI Additional Principal Judge,
Family Court, Chennai.
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V.LAKSHMINARAYANAN, J.
grs
02.09.2024
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