Back
HIGH COURT OF CALCUTTA
Subhro Kamal Mukherjee, J.
Ranu Roy
Vs.
Pradip Kumar Roy
C.O. No. 2474 of 2001
Decided on : 21st June, 2002
HINDU MARRIAGE ACT - SECTION 24 - MAINTENANCE PENDENTE LITE - STAY OF SUIT - WIFE'S RIGHT TO MAINTENANCE - ENFORCEMENT OF ORDER - EXECUTION PROCEEDINGS VS. STAY OF SUIT - LEGAL PRINCIPLES - COURT'S DISCRETION - RELEVANT FACTORS - INTERPRETATION OF SECTION 24 AND RELATED PROVISIONS.
Fact of the Case:
The wife filed an application under section 24 of the Hindu Marriage Act, 1955, claiming maintenance pendente lite and expenses of the proceedings. The court granted the application in part, directing the husband to pay a certain amount as maintenance and expenses. The wife filed a statement indicating that a substantial amount was still due and payable by the husband. She prayed for a stay of the matrimonial suit until all arrears were liquidated.
Finding of the Court:
The court held that the learned Additional District Judge erred in rejecting the wife's prayer for a stay of the suit. The court found that the path of execution proceedings is not an easy one and that relegating the wife to that path may result in the suit being heard out before the expenses may be realized. The court also noted that section 24 of the Hindu Marriage Act gives the defendant-spouse a special right to apply for maintenance pendente lite and litigation expenses, and that this right should be preserved in the absence of compelling circumstances beyond the court's control.
Issues: 1. Whether the learned Additional District Judge erred in rejecting the wife's prayer for a stay of the suit? 2. Whether the wife's right to maintenance pendente lite should be preserved?
Ratio Decidendi: 1. The court held that the learned Additional District Judge erred in rejecting the wife's prayer for a stay of the suit. The court found that the path of execution proceedings is not an easy one and that relegating the wife to that path may result in the suit being heard out before the expenses may be realized. The court also noted that section 24 of the Hindu Marriage Act gives the defendant-spouse a special right to apply for maintenance pendente lite and litigation expenses, and that this right should be preserved in the absence of compelling circumstances beyond the court's control. 2. The court held that the wife's right to maintenance pendente lite should be preserved. The court noted that section 24 of the Hindu Marriage Act gives the defendant-spouse a special right to apply for maintenance pendente lite and litigation expenses, and that this right should be preserved in the absence of compelling circumstances beyond the court's control.
Final Decision: The court set aside the order impugned and allowed the prayer made by the wife for a stay of the suit. There will be a stay of all further proceedings in the matrimonial suit pending in the court of the learned Additional District Judge, Fifth Court at Barasat, District: 24 Parganas (North) till all arrears are paid by the husband to the wife in terms of the Order No. 50 dated September 25, 2000.
Subhro Kamal Mukherjee, J.
This is a revisional application against an order dated August 7, 2001 passed by Mr. R.K. Dutta Chowdhury, learned Additional District Judge, Fifth Court at Barasat, District: 24 Parganas (North) in Matrimonial Suit No. 39 of 2001 whereby the prayer of the wife/defendant for stay of the suit filed by the husband was rejected accepting the view that order passed under section 24 of the Hindu Marriage Act, 1955 could be executed like money decrees as prescribed under Rule 30 of Order 21 of the Code of Civil Procedure.
2. Matrimonial Suit No.196 of 1996 was instituted by the husband, inter alia, on the ground of cruelty in the court of the learned District Judge at Barasat, District: 24 Parganas (North), which has been eventually transferred to the court of the learned Additional District Judge, Fifth Court at Barasat, District: 24 Parganas (North) and has since been renumbered as Matrimonial Suit No. 39 of 2001 in the said court.
3. In the said suit the wife filed an application under section 24 of the Hindu Marriage Act, 1955 on November 30, 1994 claiming maintenance pendente lite at the rate of Rs.3,000/- (Rupees three thousand) only per month and for a sum of Rs.5,000/- (Rupees five thousand) only towards expenses of the proceedings.
4. By Order No. 50 dated September 25, 2000 the learned Additional District Judge, First Court at Barasat allowed the said application in part and directed the husband to pay to the wife a sum of Rs.2,000/- (Rupees two thousand) as maintenance pendente lite per month with effect from the date of filing of the said application and to pay a, further, sum of Rs.3,000/- (Rupees three thousand) only towards the expenses of the proceedings in lump. The husband was granted liberty to liquidate the arrears at the rate of Rs.1,000/- (Rupees one thousand) only per month and he was, further, directed to pay the said instalments along with the current maintenance till the realisation of the entire arrear amount. It was directed that the litigation cost should be paid within three months from the date of the said order.
5. The wife on July 20, 2001 filed a statement, inter alia, indicating that as on June 30, 2001 a sum of Rs.96,551/- (Rupees ninety six thousand five hundred fifty one) only was due and payable by the husband to the wife in terms of the order dated September 25, 2001. It was, therefore, prayed that till all the arrears arc liquidated, the matrimonial suit should remain stayed.
6. The learned Additional District Judge, inter alia, accepted the contentions of the husband that in view of the fact that an order passed under section 24 of the Hindu Marriage Act, 1955 could be executed like money decrees with the procedures as laid down in Rule 30 of Order 21 of the Code of Civil Procedure, such the prayer for stay of the suit should be rejected.
7. Being aggrieved the wife/petitioner has come up with this revisional application.
8. Mr. Pinaki Ranjan Mitra, learned advocate, appearing for the wife/petitioner, submitted that the learned Judge in the trial court acted illegally and with material irregularity in the exercise of his jurisdiction in considering the prayer for stay made by the wife on account of non-payment of the entire amount as directed by the Order No. 50 dated September 25, 2000 and in relegating the wife to the difficult path of execution proceeding. In this connection Mr. Mitra cited the well-known decision in the case of Shrimati Anita Karmokar and Anr. vs. Birendra Chandra Karmokar, reported in AIR 1962 Calcutta 88.
9. Mr. Bidyut Kumar Banerjee, learned senior advocate, appearing for the opposite party, argued that in view of incorporation of section 28A of the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 1976, the learned Judge in the trial court was justified in not granting stay of the suit on account of arrears payable under order dated September 25, 2000. However, it is not disputed before me that the husband has not yet liquidated
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
