Ct. No. 6
C.O. 1332 of 2018
Mr. Sukanta Chakraborty
Mr. Alok Nath Chandra
Mr. Sakabda Roy
… for the Petitioner.
Mr. Arif Ali
… for the Opposite party.
This revisional application is directed against Order No.77 dated February 22, 2018
passed by the learned Additional District Judge, 10th Court, Alipore in Matrimonial Suit
No.8 of 2011.
The petitioner/wife previously filed a suit for divorce. However, she contended
that she had no intention to file the suit for divorce and whatever filed, was not according
to her instruction. Therefore, she made a prayer before the Court for non-prosecution of
the suit and the suit was dismissed for non-prosecution by an order dated April 18, 2016.
However, the counter-claim filed by the opposite party/husband was set in motion. The
petitioner during the pendency of her matrimonial suit being No.8 of 2011 filed an
application under Section 24 praying for alimony pendente lite. On the said application,
an order was passed directing alimony pendente lite for a sum of Rs.3,000/- for the wife
and Rs.3,000/- for the child. Thereafter, the petitioner again filed an application for
enhancement of the said maintenance pendente lite in the changed circumstances which
has also been allowed by the Court. Difficulty arose that the petitioner was not getting any
amount, although order of maintenance was passed by the learned Court below. In such
a situation, the petitioner filed an application on February 22, 2018 praying for stay of the
matrimonial suit in which the counter-claim of the opposite party is continuing. Such
prayer made by the wife is rejected by the learned Court below holding, inter alia, that the
petitioner has got remedy by way of taking out an application for execution by not praying
for stay of the suit.
Law is now settled that although execution can be taken out in the case when the
husband defaults in making payment of the maintenance amount, but at the same time,
the husband cannot be allowed to continue the matrimonial suit for divorce without
making payment to the wife. In the case of Smt. Sikha Gorai vs. Subodh Chandra Gorai
reported in (2003) 3 CLT (HC) 230 where the learned Single Bench of this Court has held
that although Section 21B of the Hindu Marriage Act, 1955 was inserted by the Marriage
Laws (Amendment) Act of 1976 to make special provision relating to trial and disposal of
the petitions under the Hindu Marriage Act, 1955. The said section was undoubtedly
intended to ensure expeditious disposal of proceedings, but it cannot be said that the
plaintiff-husband can insist upon for expeditious disposal of his suit for divorce when he
has admittedly failed to comply with the order directing him to pay alimony pendente lite
and expenses of the proceedings. If such interpretation is to be accepted the purpose of
insertion of Section 24 of the Hindu Marriage Act, 1955 will be nugatory and ineffective.
In my view, the provision of Section 24 of the Hindu Marriage Act vests the
defendant spouse with a special right for having maintenance pendente lite and litigation
expenses in a matrimonial suit. Statute gives this right for the protection of the spouse
concerned and to enable her to survive and contest the litigation. The whole object and
purpose of provisions under the Hindu Marriage Act has got some social implication.
Apart from legal justice, social justice is also to be done and accordingly, this court is of
the view that by flouting the order of maintenance, the opposite party/husband cannot
proceed with the suit for divorce.
On instruction Mr. Ali submits that the entire arrear shall be paid by his client as
per direction of this Court, but some time is required. So far the maintenance pendente
lite at the current rate of Rs.7,000/- he is also agreeable to pay every month. Therefore,
the opposite party/husband is directed to pay the entire arrear amount within a month to
the wife/opposite party positively.
The opposite party/husband is also directed to continue to make payment of
maintenance pendente lite at the rate of Rs.7,000/- as per order dated May 6, 2017 by 10th
of each month.
In the event such payment is made regularly, the opposite party/husband may
make a prayer before the learned Court below to achieve the object under Section 21B of
the Hindu Marriage Act as indicated above.
With these observations, C.O. 1332 of 2018 is disposed of.
(Sahidullah Munshi, J.)