Time to be granted for making payment for allowing the petition.

The respondent herein filed H.M.O.P.60 of 1997 on the file of Sub Court, Kancheepuram praying the Court to grant a decree dissolving the marriage solemnized between him and the petitioner herein.

2. The Petitioner herein filed I.A.453 of 1999 praying the court to pass an order granting interim maintenance for herself and minor son and also for litigation expenses. This application was resisted by the respondent. However, the learned Subordinate Judge, by an order dated 21.6.1999 granted interim maintenance from the period August 1997 till June, 1999 at the rate of Rs.600/- per month i.e, to say totally a sum of Rs.13,800/-. A sum of Rs.3,000/- was also granted as litigation expenses. Being aggrieved by the said order, respondent herein filed an appeal in C.M.A.4 of 1999 before the Additional District -cum-Chief Judicial Magistrate Court, Chengalpet. The appellate Court by a Judgment dated 5.1.2000, dismissed the appeal.

3. As the respondent even thereafter failed to make the payment, petitioner filed I.A.499 of 2000 in H.M.O.P.60 of 1997 on the file of Sub Court, Kancheepuram under Section 151 Code of Civil Procedure praying the Court to dismiss H.M.O.P.No.60 of 1997 for non-compliance of order passed in I.A.453 of 1999. In the affidavit filed in support of the application, petitioner has stated that she does not have sufficient funds to support herself and minor child and that they have been skipping meals now and then and they do not have proper clothing. According to her, even interim maintenance for the past period awarded, viz., Rs.13,800/- and a sum of Rs.3,000/- as litigation expenses have not been paid.

4. Respondent herein inter alia filed a counter statement wherein he has simply denied each and every averments made by the petitioner. According to the respondent, in I.A.453 of 1999, the Court has only directed her to take out separate proceeding for recovery of the said amount in the event of failure to pay the amount by the respondent. The respondent would reiterate his stand contending that he has got no source of income and he is not possessing any movable or immovable property and in fact he himself is depending on his aged father. A further contention is raised that the petitioner on earlier occasion filed a petition under Section 151 of Code of Civil Procedure and Court did not pass any order and that being so, a second petition by the petitioner for the very same relief is not maintainable. According to the respondent, inasmuch as the Court itself has clearly directed the petitioner to take out separate execution proceedings in the event of failure to pay the past interim maintenance, questioning of dismissing the main original petition would not arise.

5. The learned Subordinate Judge, after considering the matter, dismissed the said application holding that as per the orders already passed in I.A.453 of 1999, a liberty is given to the petitioner to file separate petition, the present petition is not maintainable in law.

6. The question that arises for consideration is when there is no positive provision in the Act to the effect that in the event of husband, in this case respondent, failing to pay interim maintenance and litigation expenses awarded by the Court, is it open to the Court to dismiss the original petition or strike out the defence invoking its power under Section 151 of Code of Civil Procedure ?

7. Let the Court proceed to refer to some rulings and examine the question in the light of those rulings.

(a) In Raju v. Devaki, 1988(1) Law Weekly 44, this Court had occasion to consider a question namely when a person is directed to pay certain amount as interim maintenance pending proceedings, disobeys the same, can the Court refrain from proceeding with the trial. In that case the Court observed as under:

"It has been held by this Court that S.151, C.P.C. could be invoked to stay the trial of an O.P., in which the petitioner fails to pay maintenance granted under S.24 of the Hindu Marriage Act. Th