Rajasthan High Court - Jodhpur
Smt. Payal vs Rana Ram Veera (2024:Rj-Jd:10604-Db) on 4 March, 2024
Bench: Dinesh Mehta, Rajendra Prakash Soni
[2024:RJ-JD:10604-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 669/2024
Smt. Payal W/o Rana Ram Veera, Aged About 32 Years, R/o
18/620, Chopasni Housing Board, Jodhpur (Raj.).
----Appellant
Versus
Rana Ram Veera S/o Late Shri Teja Ram, Aged About 41 Years,
R/o At Present 496, Mof C/o 32 Wing C/o 56 APO, Air Force
Station, Jodhpur (Raj.) Pin 342001.
----Respondent
For Appellant(s) : Mr Anuj Kala
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI
Order
04/03/2024
1. By way of the present appeal, the appellant (wife) has
challenged the order dated 15.02.2024 passed by the learned
Family Court No.3, Jodhpur (hereinafter referred to as 'the Family
Court'), whereby her application dated 07.02.2024 seeking stay of
the proceedings of divorce that were instituted by the respondent
(husband) has been rejected.
2. Learned counsel for the appellant submitted that the
respondent (husband) is continuously and willfully defaulting in
making payment of the interim maintenance amount that has
been determined by the Family Court and therefore, it was
incumbent upon learned Family Court to stay the proceedings of
divorce.
3. In support of his contention that the proceedings of the
petition for divorce instituted by the respondent, in the event of
[2024:RJ-JD:10604-DB] (2 of 4) [CMA-669/2024]
non-payment of interim maintenance are required to be stayed,
learned councel relied upon the following judgments:
(1) Amandeep Soni vs. Smt. Monika Soni (D.B. Civil Misc.
Appeal No. 551/2017) decided on 13.07.2018.
(2) Rana Ram vs. Smt. Payal : 2022 (2) CCC 223(Rajasthan)
(3) Muraleedharan vs. Jincy : 2019(1) CCC 262(Kerala)
(4) Kaushalya vs. Mukesh Jain : (2022) 17 SCC 822
(5) Sudeep Chaudhary vs. Radha Chaudhary : AIR 1999 SC 536
(6) Sanjay Chopra vs. Shyama Chopra : I(2001) DMC 510 (SC)
(7) Mahesh vs. Roopa : 2017(3) CCC 583 (Kerala)
(8) Rajnesh vs. Neha & Anr. : (2021) 2 SCC 324
4. Heard learned counsel for the appellant.
5. During the course of submission, learned counsel for the
appellant was not in a position to point out any statutory provision
or any law, which mandatorily requires the Family Court to keep
the proceedings in abeyance in the event of non-payment of
interim maintenance.
6. The learned councel for the appellant has heavily relied upon
the Co-ordinate Benches' judgments of this court in the case of
Amandeep Soni (supra) and Rana Ram (supra). Such reliance to
say the least is misconceived, inasmuch as these judgments deal
with a situation in which the Family Courts concerned had
dismissed the petition for divorce on account of non-payment of
interim maintenance. Dealing with such cases, this Court has held
that for want of payment of interim maintenance, the petition for
divorce itself cannot be dismissed and at the best, Family Court
can adjourn the proceedings sine die. In other judgemnts relied
upon by the learned councel it has been held that on account of
non-compliance of the order of interim maintenance under section
[2024:RJ-JD:10604-DB] (3 of 4) [CMA-669/2024]
125 Cr.P.C., it is open for the wife to apply before the Family Court
to get defence of the husband struck off.
7. Similarly, the judgment in the case of Rajnesh (supra) also
does not support appellant's case. The Apex Court while dealing
with the issue of striking off the defence and enforcement of
award has held that the order of maintenance may be enforced
like a decree of a civil court and striking off the defence of the
respondent should be the last resort. The relevant extract of the
judgment in the case of Rajnesh (supra) is reproduced
hereunder:-
"125. The order or decree of maintenance may be
enforced like a decree of a civil court, through the
provisions which are available for enforcing a money
decree, including civil detention, attachment of
property, etc. as provided by various provisions of the
CPC, more particularly Sections 51, 55, 58, 60 read
with Order XXI.
XXXX
126. Striking off the defence of the respondent is an
order which ought to be passed in the last resort, if the
Courts find default to be wilful and contumacious,
particularly to a dependant unemployed wife, and
minor children."
8. Admittedly, the present appellant has preferred execution
proceedings for the purpose of enforcement of the order of interim
maintenance.
9. The observation by the co-ordinate Bench of this Court and
Hon'ble The Supreme Court are in different factual matrix and the
same cannot be read or construed to mean that in every case, the
Family Court is required to stall the proceedings for divorce.
[2024:RJ-JD:10604-DB] (4 of 4) [CMA-669/2024]
10. That apart, it is the discretion vested in the Family Court to
deal with the situation obtaining in each case. We do not find any
reason to interfere and substitute our own discretion or opinion in
place of the one exercised by the Family Court. There is neither
any error of jurisdiction nor of law.
11. The present appeal is, therefore, rejected.
12. Stay application also stands dismissed, accordingly.
(RAJENDRA PRAKASH SONI),J (DINESH MEHTA),J
10-Mak/-
Powered by TCPDF (www.tcpdf.org)
