A husband is liable to pay maintenance to his wife and children, even if he is unable to pay.

1. Respondent in H.M.O.P. No. 18 of 1991, on the file of Subordinate Judges Court. Poonamallee, is the revision petitioner.

2. Petitioner in the said H.M.O.P. (husband) filed the same for divorce on the ground that the wife deserted him without any reasonable cause. On her entering appearance, she filed an application under S. 24 of the Hindu Marriage Act for getting interim alimony and litigation expenses for herself and her children. The court awarded a sum of Rs. 600/- per month towards the maintenance of the wife and a sum of Rs. 300/- per month for each child towards their maintenance from the date of riling of the petition, i.e., 14.2.1991, and a sum of Rs. 1,000/- towards litigation expenses. That order was passed on 8.11.1995.

3. Against that order, a Revision was taken to this Court in C.R.P. No. 1063 of 1996. Jagadeesan, J. dismissed the same even at the stage of admission, on the ground that he did not find any illegality in the order. But, while disposing of the Revision, the learned judge gave a direction to the court below to dispose of the main H.M.O.P. No. 18 of 1991 within three months from the date of receipt of copy of that order and report compliance of the same to this Court. That order was passed on 25.4.1996.

4. After the matter was posted for trial before the court below, the wife filed a memo stating that the husband has not obeyed the order of Court, and without payment of the sums as directed by Court, trial of the H.M.O.P. should not be proceeded with. That memo was filed on 24.6.1996. The same was seriously opposed by the husband. By the impugned order, the Court below directed the respondent (husband) to pay interim maintenance to the children alone and directed the trial to proceed. It further found that there was a direction by this Court to dispose of the main O.P. within three months. Therefore, it did not find any ground to stay the proceedings. It is that part of the order that is challenged in this Revision.

5. The purpose of granting interim maintenance is to enable the party to conduct the defence without being handicapped by poverty. It is also said that if the party is directed to take out execution for enforcement of the order, the very purpose of the Section is defeated. For a person who is starving or has no means to sustain herself, naturally, she will not be interested in prosecuting the litigation. The effect will be, there will be no defence in the real sense. If the order is not complied with, and the trial is also directed to be proceeded, the person who is guilty of violating the order will be in an advantageous position of not only not paying the amount as directed by court but also will get a favourable order in the main petition. In this connection. I would like to refer to a few decisions of Courts. Our High Court had occasion to consider a similar question in the decision reported in 1988-1-L.W. 44 ( Raju. I v. Devaki ) wherein this Court ruled that if a person who is directed to pay certain amount disobeys the Order, the Court shall not proceed with the trial. It is bound to stay the same till the order is implemented. This Court held thus:—

“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. Therefore, when a spouse fails to pay interim maintenance as ordered by Court, the Court has no other alternative than to stay the trial of the O.P.”

6. In 1 (1990) DMC 596 ( Narayana Nadar v. jayakodi Ammal ) Ratnam, J., as he then was, has held that in cases where the husband is a respondent, Court can even strike off the defence. It was held in that case that the direction for payment of interim alimony and litigation expenses to a financially weaker spouse during the pendency of the matrimonial proceedings is only to erase the financial inequality and it is common knowledge that the path of execution is not smooth. In the contex