Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 435

IN THE HIGH COURT OF MADHYA PRADESH
Sanjeev Sachdeva and Vinay Saraf, JJ.
Lalit Chaturvedi (Dr.) v. Dr. Dipali Sahu
First Appeal No. 1775 of 2024 (Jabalpur): against the interim orders dated 30.4.2024 and 1.10.2021; Decided on 15.10.2024

Advocates:
Manoj Chaturvedi for appellant;
Deepak Panjwani for respondent No. 1.

An interim maintenance order under Section 36 of the Special Marriage Act remains enforceable despite the dismissal of a divorce petition, as it is connected to proceedings in Chapters V and VI.

Headnote:(A) Special Marriage Act, 1954 - Section 36 and 39A - Appeal against orders regarding maintenance - Appellant contended that the execution of maintenance order is not permissible as per Section 39A, which applies only to Chapters V and VI of the Act - Court held that an order under Section 36, despite being in Chapter VII, is enforceable under Section 39A when connected to Chapters V or VI - Dismissal of spouse's divorce petition does not nullify interim maintenance obligations. (Paras 6, 13, 24-28)

(B) Execution Petition - The nature of execution proceedings is not to reassess underlying merit but to enforce existing decrees; the executing court does not adjudicate on the merits. (Paras 25, 26)

Facts of the case:
The appellant and respondent were married but separated in February 2016; interim maintenance order was issued on 4.3.2017 for Rs. 6,000 per month during ongoing divorce proceedings. Appellant argues that maintenance is unenforceable as the divorce petition was dismissed.

Findings of Court:
The order for maintenance is enforceable under Section 39A of the Act, and the appeal is without merit.

Issues: Whether a maintenance order under Section 36 is enforceable after the dismissal of the divorce petition.

Ratio Decidendi: The court determined that interim maintenance is still enforceable despite the dismissal of the divorce proceedings since the enforcement provision applies.

Result: Appeal dismissed.

ORDER

Sachdeva, J. -- 1. Appellant impugns orders dated 30.4.2024 and 1.10.2021, whereby in an execution proceeding, employer of the appellant has been directed to furnish the income details of appellant to respondent.

2. Respondent had filed the subject execution seeking execution of the order of maintenance dated 4.3.2017 assessing interim maintenance under section 36 of the SPECIAL MARRIAGE ACT , 1954 (hereinafter referred to as "the Act") @ 6,000/- per month.

3. Contention of learned counsel for appellant is that the order passed under section 36 of the Act is not executable in terms of section 39A of the Act. He further submits that a sum of Rs.48,000/- has been deposited in the proceeding under the Domestic Violence Act and a sum of Rs.2,90,000/- was paid in cash to the respondent and she had not claimed adjustment on either of the said amount.

4. Appellant and respondent were married but on account of certain disputes they separated and have been living separately since February, 2016. Appellant filed a proceeding for divorce under the Act, in which, by order dated 4.3.2017 interim maintenance @ 6,000/- per month was fixed by the Court in exercise of powers under section 36 of the Act. Therefore, the petition filed by appellant was dismissed on 24.11.2022. On 24.11.2022, not only the petition for divorce filed by the appellant but the proceeding for restitution of conjugal rights filed by the respondent were also dismissed. In the meantime, appellant being aggrieved by order dated 4.3.2017 had filed Miscellaneous Petition being M.P.No.5583/2018 before this Court which was dismissed as withdrawn on 23.4.2024 noticing that the petition for divorce had already been dismissed.

5. As per the learned counsel for appellant the interim order of maintenance ceases to have effect after the dismissal of the petition filed by the appellant for divorce. He submits that in the appeal filed against the said order dismissing the divorce petition, no further order of maintenance has been passed. Learned counsel for appellant submits that respondent is also a qualified Doctor and is doing Private Practice and her income is infact more than that of the appellant and thus she is not entitled to any maintenance.

6. He further submits that no execution petition can lie for seeking enforcement of an order passed under section 36 of the Act for the reasons that section 39A of the Act providing for enforcement of orders passed by the Family Court under the SPECIAL MARRIAGE ACT , is restricted to the proceeding under Chapter V or VI of the Act and section 36 is contained in Chapter VII and as such an order passed under section 36 of the Act is not enforceable.

7. Reference may be had to section 36 of the Act which reads as under :--

"Alimony pendente lite.?Where in any proceeding under Chapter V or Chapter VI it appears to the district Court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly during the proceeding such sum as having regard to the husband’s income, it may seem to the Court to be reasonable."

8. Under section 36, in any proceedings under Chapter V or Chapter VI, if it appears to the District Court that the wife has no independent income sufficient for her support and necessary expenses of the proceeding, it may, on an application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly, during the proceeding such sum, keeping in view of the income of the husband, as it may seem reasonable to the Court.

9. In the instant case, appellant had filed the petitions under sections 23, 24, 25 and 27 of the Act, whereas the respondent had filed the petitions under section 22 of the Act. sections 22, 23, 24, 25 and 27 are contained in Chapters V and Chapter VI of the Act.

10. For appreciating the contention of lear