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1999 Supreme(Guj) 68
Gujarat High Court
Judgename :M.R.CALLA
NEETA SHREYAS JOSHI - Appellant
Versus
SHREYAS SIDDHARTH JOSHI - Respondent
Civil Revision 249 of 1999
Decided On : 02/23/1999
Headnote:Civil Procedure Code, 1908 - Sec. 115 - Rejection of petitioners application for stay of proceedings pending before City Civil Court Ahmedabad in divorce proceedings initiated by her husband respondent - Petition was presented on ground that respondent has not complied with the order of maintenance passed by Family Court at Bombay under Sec. 24 of Hindu Marriage Act, 1955 - Petition was rejected by City Civil Ahmedabad because two separate matters are pending in two separate Courts located at two different places - Non-compliance with the order of one Court can not be ground of stay of proceeding at the other - Court held, that in the facts & circumstances petitioner wife was left with no other remedy to exercise her right of defence against the suit of husband, till she is able to lend strength to herself after the compliance of the order of maintenance pendente lite passed by the Court at Bombay - Court is not powerless in such matters - City Civil Court must have exercised the inherent powers under Sec. 151 of the Code of Civil Procedure to stay proceeding pending before it - As a result Court stayed the proceeding of divorce pending before City Civil Court Ahmedabad till order of maintenance passed by Family Court at Bombay is complied with.
The petitioner wife had never sought rejection of the husbands petition for divorce on the ground of his failure to pay the maintenance pendente lite. All that she had asked for is the stay of proceedings till the order of the maintenance pendente lite is complied with. I simply fail to understand how these observations could form the basis for rejection of the application seeking stay of the proceedings. In principle, I find that it was a fit case in which the Trial Court ought to have exercised the inherent powers under Sec. 151 of the Code of Civil Procedure as there was no express provision under the Hindu Marriage Act for the purpose of staying the proceedings and in the facts and circumstances of this case, the petitioner wife was not left with any other remedy so as to exercise her right of defence against the suit and, therefore, till she is able to lend strength to herself after the compliance of the order of maintenance pendente lite passed by the Court at Bombay, the proceedings in the divorce petition pending in the Court at Ahmedabad should have been stayed. It is, therefore, very clear that the City Civil Court has failed to exercise the jurisdiction which was properly vested in it and it was a fit case in which such power should have been exercised in favour of the petitioner wife who had approached the Court for the purpose of stay of the proceedings pending before it without asking for the stay of the proceedings pending in some other Court and I have no hesitation in holding that the mere fact that the order of maintenance pendente lite has been passed by the Family Court at Bombay could not create any legal impediment against the stay of the proceedings in the divorce petition pending before the Court at Ahmedabad.
[Para 10]
The upshot of the aforesaid discussion is that the order dated 21st January, 1999 passed by the City Civil Court No. 9, Ahmedabad, in Hindu Marriage Petition No. 72 of 1996 below Application Exh. 45 cannot be sustained in the eye of law. The same is hereby quashed and set aside. The proceedings which are pending in the divorce petition filed by the respondent husband before the aforesaid Court at Ahmedabad being Hindu Marriage Petition No. 72 of 1996 are hereby stayed till the order dated 25th July, 1997 passed by the Family Court at Bombay in M.J.A. No. 1103 of 1996 is complied with. The learned Counsel for the respondent husband even at this stage, has raised an objection that the petitioner wifes case was only for payment of Rs. 26,000/- against the maintenance. That may be so. That appears to be a mere calculation part of it. On that date, according to her, an amount of Rs. 26,000/- must have been due. The matter of substance is the want of compliance of the order passed by the Family Court at Bombay. This Court is not going into the vortex of calculations. In case, the arrears upto date are paid, the Court at Ahmedabad may proceed with the proceedings in the divorce petition in accordance with law and it is expected that the order shall be complied with regularly by the respondent husband in letter and spirit so as to avoid any further stay of the proceedings.
[Para 11]
( 1 ) THIS Civil Revision Application under Sec. 115 of the Code of Civil Procedure is directed against the order dated 21/01/1999 passed by the City Civil Court, No. 9, Ahmedabad City, below Application Exh. 45 in Hindu marriage Petition No. 72 of 1996.
( 2 ) ). The petitioner and the respondent who will be hereinafter referred to as the wife and husband, were married on 6/12/1994, at Ahmedabad. They resided together at Bombay upto 29/03/1995. In the end of March 1995, the wife was sent or came back to Ahmedabad to appear in the examination. The wifes case is that the husband did not take her back to Bombay after the exams were over and the case of the husband is that the wife did not return. The husband then filed a petition for divorce under Sec. 13 of the Hindu Marriage Act against the wife on the ground of non-consummation of marriage and the physical as well as mental cruelty, on 7/02/1996, in the City Civil Court, at Ahmedabad, which was registered as Hindu Marriage Petition No. 72 of 1996. The wife preferred a petition for restitution of conjugal rights under Sec. 9 of the Hindu Marriage Act in the family Court Bombay on 11/06/1996 which was registered as MJA-1103 of 1996. In this application for restitution of conjugal rights, the wife also moved an application under Sec. 24 of the Hindu Marriage Act claiming maintenance pendente lite and the expenses to meet the litigation. This application was moved by the wife on 9/08/1996 before the Family Court at Bombay and on 2 5/07/1997, the Family Court at Bombay passed an order granting maintenance of rs. 4,000/- per month to the wife with effect from 9-8-1996, i. e. , from the date on which the application under Sec. 24 had been moved. On behalf of the husband this order dated 25-3-1997 has been sought to be referred as ex parte order, merely because the husband or his Counsel did not remain present despite the notice of the wifes application under Sec. 24 of the Act. Thus, the proceedings between the two spouses were going on against each other with regard to divorce petition as filed by the husband in the Court at Ahmedabad and with regard to the restitution of conjugal rights as moved by the wife in the Family Court, at Bombay. Whereas the order with regard to the maintenance pendente lite had been passed by the Family court, at Bombay in favour of the wife. she did not move any separate allocation for maintenance under Sec. 24 of the Act in the proceedings for divorce as initiated by her husband at the Ahmedabad Court, but she only moved for expenses of the litigation of the divorce petition and the Court at Ahmedabad passed an order for payment of Rs. 5,000. 00 against the expenses of the litigation. . According to the husband, the amount of maintenance at the rate of Rs. 4,000. 00 per month as was granted by the Family Court at Bombay was paid by him upto July 1998, whereas according to the wife, it is paid only upto June 1998 and it is also stated that on 25/12/1998. a sum of Rs. 1,1 00. 00 was paid to the wife in addition to the amount paid earlier up to June/july, 1998. The husbands case is that in all, he has paid a sum of Rs. 92,000. 00 besides the amount of Rs. 1,100. 00, paid on 25/12/1998. It is also the case of the husband that he is essentially a Chemical Engineer, but on account of some subsequent developments, his income was reduced and, therefore, he moved an application in the Family Court at Bombay for reduction of the amount of the maintenance on 17/03/1998 being Misc. Application No. 395 of 1998 and the same is said to be pending. However, the fact remains that even as per the case of the husband himself, the regular maintenance amount has not been paid after 9/06/1998. It is submitted on behalf of the husband that the proceedings in the divorce petition at Ahmedabad Court has reached the stage of evidence and so far as the proceedings initiated by the wife for restitution of conjugal rights in the Family Court at Bombay is concerned, i
