1. The petitioner in I.A No. 3603 of 1991 in O.P (H.M.A) No. 379 of 1987, II Additional Sub Court, Thiruvananthapuram, is the petitioner herein. The counter petitioner in the said proceedings is the respondent in this revision. The revision petitioner filed a petition against the respondent for divorce, under Section 13 of the Hindu Marriage Act. The petition was filed as early as 11-11-1987. The divorce was sought on the ground of cruelty. Pendente lite, the petitioner (wife) filed I.A No. 880 of 1989, for directing the counter petitioner (husband) to pay maintenance at the rate of Rs. 300/- per mensem and Rs. 500/- towards the litigation expenses. The court below ordered the petition, as prayed for. In C.R.P No. 568 of 1991, this court modified the order, by directing the respondent-counter petitioner (husband) to pay an amount of Rs. 200/- per mensum towards maintenance and Rs. 500/- towards the litigation expenses. A sum of Rs. 6,300/- was due on the date of filing I.A No. 3603 of 1991. The repsondent deliberately committed default in payment. It was so done without bona fides. A sum of Rs. 1,100/- was paid subsequently, leaving a balance of Rs. 5,200/-. The order passed by the court below, as modified by this Court in C.R.P No. 568 of 1991, has not been complied with by the respondent. Stating that the respondent is deliberately flouting the orders passed by the court, the petitioner filed I.A No. 3603 of 1991 praying that the court may strike off the defence, since it is evident that the respondent is wilfully committing default in payment of the amounts ordered by the court, and in consequence, to pass a decree for divorce. The respondent did not file an objection.
2. The court below heard the matter and took the view that under the Hindu Marriage Act, there is no provision for striking off the defence, in case any one of the parties flouts the orders of the court. It was further held that Section 151 of the Civil P.C cannot be called in aid to strike off the defence. It is open to the wife (revision petitioner) to realise the amount by filing execution petition. The court below took the view that the mere fact that the counter petitioner failed to pay the arrears of maintenance and did so even wilfuly and without bona fides, cannot be a ground to strike off the defence. It is against the said order passed by the court below in I.A No. 3603 of 1991 dt. 7-11-1991, the petitioner in the court below has come up in revision.
3. I heard counsel.
4. It is agreed before me that as per the order passed in I.A No. 880 of 1989 dated 9-2-1989, as modified by this Court in C.R.P No. 568 of 1991, the respondent-husband was bound to pay Rs. 200/- per mensem towards maintenance and Rs. 500/- towards the litigation expenses. It is further common ground that a sum of Rs. 5,200/- is outstanding as balance. The amount was not paid in spite of long lapse of time. Literally and in substance, the respondent has flouted the orders of the court and has failed to pay the maintenance and the litigation expenses due to the revision petitioner, without reasonable cause. In such circumstances, even in the absence of a provision in the Hindu Marriage Act, the court has power to see that the orders passed by it are enforced and, in the event of non-compliance of the orders passed by the court, the pleadings or defence of a party can be struck off, in exercise of the inherent powers vested in the court.
5. A sum of Rs. 5,200/-, outstanding as balance due to the petitioner, should be the maintenance due for a period of years. According to the court below, the revision petitioner can initiate proceedings in execution. As observed by Banerjee, J. in Anita Karmokar v. Birendra Chandra Karmokar AIR 1962 Cal 88, at page 92, “the path of execution is not an easy going highway and provides no short-cuts to the destination……….Difficutlies of a litigant in India begin when he has obtained a decree. To relegate one to that difficult and risky pathway, even for realisation of the litigation expenses………may result in the suit itself being heard out before the expenses may be realised by process of execution. Therefore, to hold that the levying of execution is the only remedy for enforcement of an order made under S. 24 of the Hindu Marriage Act may result in making such order wholly nugatory and ineffective”. The above reasoning applies with equal force here. Even in the absence of a provision in the Hindu Marriage Act for striking off the defence in case one of the parties to the proceedings wilfully refuses to comply with the order of the court, there is inherent power in the court to pass such orders as are necessary for the ends of justice or to prevent the abuse of the process of the court.
6. Varghese Kalliath, J., in Parukutty Amma & Another v. Thankamma & Others 1988 (1) KLT 883, at pages 884 and 885, held that S. 151 of the Civil P.C saves the inherent powers of the court and, in exercise of that power, the court can strike off the defence in deserving cases for meeting the ends of justice, Kalliath, J. observed, at page 885, thus:
“………If the court feels that to meet the ends of justice such a course is necessary, namely, to strike off the defence, I am of the view that such a power inhers with the court from its very constitution as a court and that power is absolutely necessary in certain circumstances to meet the ends of justice…….. In cases where a party who deliberaely disobeys the orders of the court has to incur the liability of his defence struck off by the court. This is essential because if this power is not acceded to the court, it will create great difficulty for the court to control the proceedings of the court and to obtain the co-operation of the parties.”
I concur with the said view. In Narayana Nadar v. Jayakodi Ammal 1990 (1) DMC 596, Ratnam, J. of the Madras High Court stated the law thus:
“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 context of the prevailing circumstances in our society, the payment of interim alimony and litigation expenses, pendente lite to a spouse, who is financially weaker than the other, with a view to enable him or her to conduct the proceedings in a matrimonial cause and secure speedy justice, should be regarded as a sine qua non of justice and the argument that resort to execution proceedings can be had against the defaulting spouse or that other proceedings can be taken, cannota be countenanced, especially when enforcement of such orders otherwise than by execution, is neither prohibited nor excluded by S. 28A of the Act. Thus, on a careful consideration of the facts and the circumstances and also the relevant statuatory provisions, the court below cannot be stated to have committed any error in striking out the defence of the petitioner herein.”
Again, in Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shyamala 1990 (II) DMC 486, Amareswari, J. of the Andhra Pradesh High Court stated the law thus:
“I am of the view that to secure the ends of justice and to prevent the abuse of the court's process, striking out of the defence can be resorted to under S. 151, C.P.C The intention of the petitioner is to drive the respondent to take recourse to execution under S. 28 and to stay the main proceedings. If execution has to be resorted to staying the main proceedings, the petitioner would be achieving the object of protracting the proceedings. That would also be encouraging the parties to flout the orders of the court and to dealy the proceedings which are expected to be expeditious. In such circumstances, striking out the defence of such a defaulting party would be a proper order……”.
Substantially, the view expressed by the Madras and Andhra Pradesh High Courts was expressed by Bhopinder Singh Dhillon, J. of the Punjab and Haryana High Court, in Ram Swaroop… v. Smt. Janak…. 40. I concur with the aforesaid decisions of the Madras, Andhra Pradesh and Punjab and Haryana High Courts.
7. In the light of the above decisions, I hold that the order passed by the learned Subordinate Judge in I.A No. 3603 of 1991 dated 7-11-1991 is clearly illegal and perverse. The court below had inherent jurisdiction under Section 151 of the Civil P.C to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. Instead of exercising the jurisdiction so vested in the court, the lower court has thrown its hands in despair and has offered a gratuitous legal opinion to the revision petitioner to file an execution petition, which, as stated by Banerjee, J. in Anita Karmokar's case AIR 1962 Cal 88, is not an easy going highway, and is beset with all imponderables and practical difficulties.
8. The court below has failed to exercise the jurisdiction vested in it under law. I, therefore, set aside the order passed by the court below in LA. No. 3603 of 1991 in O.P (H.M.A) No. 379 of 1987 date 7-11-1991 and allow this revision. This is a fit case in which, for deliberate non-payment of Rs. 5,200/- due towards the maintenance and litigation expenses to the revision petitioner, the defence of the respondent (husband) should be struck off. I hereby direct that the defence of the respondent be struck off accordingly.
The revision is allowed with costs, including counsel fee Rs. 1,000/-.
Petition allowed.