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Case Number

Civil Revn. No. 348 of 1984*

Attorney(S)

U.C.Panda
S.K.Padhi
A.K.Padhi

Judges

S.C Mohapatra, J.

Acts

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This Civil Revision was filed by the husband against an order which dismissed a matrimonial suit for divorce under the Hindu Marriage Act, 1955 for non-compliance with a direction to pay maintenance pendente lite and litigation expenses.

On 16-7-1983 the trial court (Subordinate Judge) ordered the husband to pay Rs.150 per month as maintenance pendente lite and Rs.300 as litigation expenses; that order did not stipulate any time for payment. The wife applied on 10-8-1983 for dismissal for non-compliance. The husband was given an opportunity to object and on 27-10-1983 filed an objection stating he had no capacity to pay.

On 8-3-1984 the trial court ordered the husband to pay the entire arrears by 9-4-1984 and warned that failure would result in him being non-suited for contumacious refusal to pay. The husband did not pay by the stipulated date and on 9-4-1984 the suit was dismissed by the trial court for contumacious refusal to pay alimony pendente lite (the dismissal order expressly cited Mahalingam Pillai v. Amsavalli).

Legal Issues Presented

Whether the order directing payment of maintenance pendente lite and litigation expenses under S.24 of the Hindu Marriage Act (which did not stipulate a time for compliance) could be followed later by another order fixing a time and providing that non-payment would result in dismissal of the suit.
Whether the trial court could dismiss the suit for non-payment when an alternative remedy of execution of the order was available.
Whether the court can exercise its inherent power (in the absence of a specific statutory provision authorising dismissal) to punish non-compliance with an S.24 order by dismissal or other coercive measures.
Whether dismissal was justified where the husband had asserted inability/insufficient means to pay (i.e., whether there was material or reasons to support a finding of contumacious conduct).
Whether the trial court had to consider the statutory ingredients of S.24 (such as the applicant's means and needs) before passing the S.24 order, and whether that omission could be revisited in revision after the period of limitation.

Arguments of the Parties

Appellant's (Husband's) Arguments — Mr. U.C. Panda

The S.24 order was unjustified because maintenance had already been granted to the opposite party and her son in a partition suit, and the court did not consider the statutory ingredients of S.24.
Because the original S.24 order did not stipulate any time for payment, a subsequent order fixing a time and making default punishable by dismissal was illegal.
There existed an alternative mode of recovery (execution of the order) and therefore dismissal of the suit for non-payment was unjustified.
Inherent power should not be used to dismiss the suit in the absence of a specific statutory provision authorising such a penalty; S.24 is a benevolent provision and cannot be given a penal character by the exercise of inherent power.
The order was vitiated because there was no material or reason to support the finding of contumacious conduct when the husband had asserted inability to pay.

Respondent's (Wife's) Arguments — Mrs. A.K. Padhi

The benevolent provision in S.24 should be construed in favour of the applicant (the wife) and the High Court should not exercise revisional jurisdiction to interfere with a trial court's decision enforcing such an order.
She challenged each of the grounds raised by the husband (specifics not elaborated beyond the general submission to uphold S.24 enforcement).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ganga Devi v. Krushna Prasad Sharma, ILR (1964) Cut 958 : AIR 1967 Orissa 19	Sets out the statutory ingredients an applicant under S.24 must establish (applicant's income, opposite party's income, and the nature/extent of need).	The Court relied on this authority to state what must be considered when granting S.24 relief and observed the trial court had failed to keep these ingredients in mind when making the S.24 direction.
Mahalingam Pillai v. Amsavalli, (1956) 2 Mad LJ 289	Principle permitting court action for contumacious refusal to comply with an order (cited by the trial court in its dismissal order).	The trial court invoked this authority to justify dismissal; the revising court noted the trial court cited this precedent but held that dismissal required a proper finding of contumacious conduct which was absent.
B.C. Kotireddy v. B. Ramanamma, (1975) 2 APLJ (HC) 70 (Andhra Pradesh)	Represents a differing view (Andhra Pradesh High Court) on the use of inherent power to enforce S.24 orders.	The Court noted this decision as an exception to the prevailing majority view; it acknowledged differing authority but relied on the majority position.
Wilhelmina Codd v. Bertie Elijah Codd	Authority cited among High Court decisions supporting the inherent power to enforce such orders.	Cited as part of the body of decisions which support the view that courts have inherent power to secure compliance with S.24 directions.
Prithyirajsinhji v. Bai Shivprabhakumari, AIR 1960 Bom 315	One of the High Court decisions supporting the exercise of inherent power to enforce S.24 orders.	Relied upon to show the majority view of High Courts permitting use of inherent power to secure compliance.
Tara Singh v. Jaipal Singh, ILR (1946) 1 Cal 604	High Court authority supporting inherent power for enforcement of maintenance-related orders.	Cited among decisions showing judicial support for coercive measures (stay, striking defence, dismissal) to secure compliance when appropriate.
Ram Swaroop v. Janak, AIR 1973 Punj & Har 40	High Court authority cited on the exercise of inherent powers to enforce court orders.	Used as part of the persuasive array of decisions endorsing the availability of inherent powers to secure compliance.
Parkasho v. Lachhman Singh, 1977 Mad LR 117	High Court authority supporting the proposition that courts may use inherent power to ensure compliance with orders for maintenance and costs.	Cited to reinforce the majority position that courts possess such inherent powers, subject to restraint and proper findings.

Court's Reasoning and Analysis

The Court proceeded by stages in its analysis and confined itself to the materials and arguments before it.

First, the Court observed that the Subordinate Judge's order dated 16-7-1983 did not specify consequences in the event of default nor a time for compliance; the husband later filed an objection asserting he had no capacity to pay. When the trial court issued the subsequent order on 8-3-1984 fixing a time for payment and warning of dismissal, the question arose whether the court could exercise its inherent power to enforce compliance by dismissal if payment was not made.

The Court accepted that S.24 is a benevolent provision to be construed in favour of the applicant, but also concluded that courts do possess inherent power to secure compliance with an S.24 order. The Court surveyed authority and noted that a majority of High Courts permit the exercise of inherent powers to get S.24 orders complied with, though an exception (Andhra Pradesh) exists.

The Court articulated the permissible and proportionate measures for enforcement: stay of proceedings, striking out a defence, dismissal of the application initiated by a defaulter, or other steps to secure payment. The rationale is that execution under Order 21, CPC may be slow and, without interim maintenance and costs, the aggrieved party cannot fairly prosecute or defend proceedings, thereby violating natural justice.

Crucially, the Court emphasized restraint: the inherent power is wide but must be used sparingly; the order used to enforce compliance must not be penal in character and courts must give clear findings based on reasons and material establishing contumacious or deliberate non-compliance before imposing severe sanctions like dismissal.

Applying these principles to the present case, the Court found material irregularity in the trial court's exercise of its power. The trial court had dismissed the suit for contumacious refusal without considering the husband's specific assertion, in his objection, of inability to pay. The trial court did not make any clear finding, nor record reasons or material that would show the non-payment was deliberate or contumacious. The revising Court also observed that litigation expenses might have been met by recourse to the Legal Aid and Advice Board under Article 39-A and that the trial court could have considered staying the litigation pending such assistance.

Holding and Implications

Core Ruling: The Civil Revision is allowed and the matter is remitted to the trial court for reconsideration.

The Court specifically found that the trial court's dismissal was vitiated by material irregularity because it imposed the severe consequence of dismissal without recording a finding based on reasons and material that the default was contumacious or deliberate.

Direct consequences for the parties:

The trial court's dismissal is set aside for reconsideration with directions to consider the husband's assertion of inability to pay, to record findings and reasons if coercive measures are contemplated, and to consider less drastic measures (such as stay, execution or assistance from Legal Aid) before ordering dismissal.
Costs of the civil revision: although the petitioner (husband) succeeded in revision, the Court ordered him to pay a consolidated cost of Rs.150 to the opposite party (wife) for having been dragged to the High Court.

Broader implications: The opinion affirms that courts possess inherent power to enforce S.24 orders (a view supported by a majority of High Courts), but emphasises that such power must be exercised with caution, on the basis of recorded findings and reasons, and should not be penal in character. The Court remitted the matter for factual reconsideration rather than laying down a new legal rule.

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Binayak Chandra Pady v. Kamala Padhy Alias Padhiani .

1. This Civil Revision by the husband arises out of an order dismissing a matrimonial proceeding for divorce under the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) for non-compliance of the direction to the husband to pay maintenance pendente lite and litigation expenses to the wife within the time stipulated.

2. On 16-7-1983, the learned Subordinate Judge passed an order directing the husband for payment of monthly maintenance at the rate of Rs. 150/- and expenses of the proceeding of Rs. 300/- to the opposite party who is his wife. No time was stipulated in the order for the payment of the amounts. Shortly thereafter, on 10-8-1983, an application was filed on behalf of the wife that the suit should be dismissed for non-compliance of the order. Opportunity was given to the husband to file objection to such a petition. On 27-10-1983, the husband filed the objection stating therein that he has no capacity to pay the amount ordered. The application with the objection was considered on 8-3-1984 and order was passed directing payment of the entire arrears by 9-4-1984. The order dt. 8-3-1984 reads as follows:—

“Advocate for plaintiff files petition for time for hearing of petition filed by defendant on the ground that the petitioner-plaintiff is suffering. Advocate for defendant files hazira. Heard. The plaintiff in his counter has stated that he has no capacity to pay and as such his default is not intentional. The plaintiff was ordered to pay alimony pendente lite to his wife, the defendant at the rate of Rs. 150/- per month from the date of the suit and a sum of Rs. 300/- towards her costs. Cost of litigation as per the order dt. 16-7-1983 passed in M.J.C 371/75. Till now the plaintiff has paid nothing to the defendant. He is directed to pay the arrear alimony and legal expenses to the defendant as per the final order passed in M.J.C 371/75 by 9-4-84 failing which he would be non-suited for contumacious refusal to pay alimony pendente lite.”

8-3-84.”

The amount not having been paid by the date fixed, the suit was dismissed as per the previous order dt. 8-3-1984. The impugned order reads as follows:

“9-4-84: Parties file hazira. The plaintiff has not paid the arrear alimony to the defendant in spite of directions.

Heard.

The suit is dismissed for contumacious refusal of the plaintiff to pay the alimony pendente lite as per the principle laid down in Mahalingam Pillai v. Ansavalli reported in (1956) 2 Mad LJ 289. No costs.

Sd/-…………”

3. Mr. U.C Panda, the learned counsel for the petitioner submitted that the order of dismissal of the suit amounts to exercise of jurisdiction with material irregularity on the following grounds:—

(i) Maintenance has been granted in a partition suit to the opposite party and her son and therefore, the order under S. 24 of the Act is unjustified since the ingredients thereof have not been considered by the Court.

(ii) There being no direction in the order under S. 24 of the Act for consequences in default to pay the amount within a stipulated time and no time having been stipulated, a subsequent order to that effect is illegal.

(iii) Alternative mode of recovery of the sum by execution of the order being available, the dismissal of the suit for non-payment is unjustified.

(iv) The grant of pendente lite maintenance and litigation expenses being a provision of a Special Statute in absence of specific provision for dismissal of the suit for non-compliance of the order, the suit could not have been dismissed in exercise of inherent power.

(v) The order is vitiated in the absence of any material or reason in support of the contumacious conduct when the petitioner has asserted that having no means to pay the default is not intentional.

Mrs. A.K Padhi, the learned counsel for the opposite party challenged each of the grounds raised by Mr. Panda and submitted that the benevolent provision in S. 24 of the Act should be considered in a manner to help the opposite party in whose favour the order has been passed and this Court should not exercise its revisional jurisdiction to interfere with the same. The rival contentions require careful consideration.

4. In a decision of this Court reported in ILR (1964) Cut 958 : (AIR 1967 Orissa 19) (Ganga Devi… v. Krushna Prasad Sharma…Opposite Party.) it has been laid down that—

(i) the applicant under S. 24 of the Act is to establish as in a suit that she has no independent income sufficient for her support and for necessary expenses of the proceeding, or, if she has income, the nature of and quantum of the same;

(ii) the income of the opposite party and the quantum thereof; and

(iii) the nature and extent of her need — both for maintenance and for expenses of the proceeding.

On perusal of the order dt. 16-3-1983, I find that the learned Subordinate Judge failed to keep the ingredients in mind while giving the direction although he took note of the maintenance granted in the partition suit. However, I am not inclined to examine the correctness of the order three years after when the petitioner did not prefer to assail the same within the period of limitation provided for the same under the Limitation Act, 1963, when in the said order it has been found that the opposite party has no income sufficient for her support and for necessary expenses of the proceeding.

5. There is no dispute that the order dt. 16-3-1983 did not stipulate the dismissal of the suit for non-compliance of the order within a stipulated time. There is also no dispute that the amount directed to be paid can be realised by execution of the same. In the circumstance, it is to be considered whether the Court is to exercise its inherent power to dismiss the suit for non-compliance of the order after stipulating the time for payment in another order and imposing the condition that the default would entail dismissal of the suit.

6. Mrs. Padhi is correct in her submission that the benevolent provision in S. 24 of the Act should be construed in favour of the applicant. She has cited several decisions where the suit has been dismissed in exercise of the inherent power for non-compliance of the order. All those decisions of Bombay, Calcutta, Madras and Punjab High Courts have been considered by the learned commentator Mr. Jaspal Singh in his treatise ‘Hindu Law of Marriage and Divorce’ while considering S. 24 of the Act. Except Andhra Pradesh High Court in a decision reported in (1975) 2 APLJ (HC) 70 (B.C Kotireddy v. B. Ramanamma) all other High Courts are of the view that the Court has inherent power to get its order under S. 24 of the Act complied with. My view independently taken is also supported by the views expressed by majority of the High Courts in the decisions reported in Wilhelmina Codd… v. Bertie Elijah Codd…Non-Applicant.); AIR 1960 Bom 315 (Prithyirajsinhji v. Bai Shivprabhakumari); ILR (1946) 1 Cal 604 (Tara Singh…Plaintiff, v. Jaipal Singh…Defendant, .*); (1956) 2 Mad LJ 289 (Mahalingam Pillai v. Amsavalli); AIR 1973 Punj & Har 40 (Ram Swaroop v. Janak); and 1977 Mad LR 117 (Parkasho v. Lachhman Singh).

7. To get the order complied with the inherent power can be exercised by stay of the proceeding initiated by the defaulter or by striking out his defence where the proceeding has been initiated by the party in whose favour the order is passed or to dismiss the application of the defaulter initiating the proceeding. The normal rule of restraint to exercise inherent power in cases of availability of alternative forum would not be attracted to realise the money as per the order for pendente lite maintenance and litigation expenses, since the same is to be paid to a person having no sufficient means. Execution of the order for the same takes time in view of the procedure provided under O. 21, C.P.C and without the maintenance and litigation expenses, the party in whose favour the order is passed does not get a fair chance to prosecute or defend the proceeding as the case may be. Where a party does not get adequate opportunity natural justice is violated. Therefore, the court comes to the rescue of that person in exercise of the inherent power. However, the wider the power, the greater should be the restraint. Courts having wide power, therefore, should carefully consider the facts and circumstances to use only that much of power which would be sufficient for getting the order complied with and not beyond. It should be remembered that in absence of specific provision, the order should not be penal in nature. A just balance is to be struck.

8. There can be no doubt that contumacious conduct or deliberate act not to comply with the order can be dealt with stiffly by dismissing the application or striking of the defence of the defaulter as the case may be. Before exercising the said power, court is to give a clear finding based on reasons and material to that effect.

9. Since the Court has the power to stay the proceeding or dismiss the same, the power should be exercised by doses. It should first stay the proceeding and give opportunity to the defaulter to pay the same. In spite of it where the default continues it might dismiss the application initiated by the defaulter in case, it comes to the conclusion that the non-payment was deliberate and contumacious. However, the power should not be allowed to be utilised by a party to harass the other party to whom direction is given merely on account of non-payment where the circumstances would indicate that the non-payment was on account of reasonable cause. In such cases, the party entitled to receive pendente lite maintenance and expenses of the proceeding can be allowed to execute the order and till then the proceeding can be stayed.

10. In the objection in the present case, it has been clearly stated that the petitioner is not in a position to pay the amount directed by the order. The trial court has not taken into consideration its assertion in the objection to find out the correctness thereof and dismissed the same merely by the order to deem the non-payment as contumacious. The petitioner is not without any maintenance in this case although the same is held not to be sufficient for her maintenance and expenses of the proceeding. So far as litigation expenses, the same could have been executed by the aid and assistance of the Legal Aid and Advice Board constituted by the State Government under Art. 39-A of the Constitution. The Court could have stayed the litigation till then. These aspects of the matter would be material for consideration for the trial Court to decide whether the suit was to be stayed or dismissed in case it would have come to the conclusion that the petitioner had the financial position to pay the amount ordered. Where the finding would be that the financial condition of the petitioner deteriorated to the extent that he is not able to pay the amount to be paid, the result would be different depending upon the facts and circumstances.

11. Since the exercise of the inherent power is to depend on the facts and circumstances, normally, this Court would not exercise its revisional power. In this case, however, the Court exercised the jurisdiction with material irregularity since there is no finding.

12. In the result, the Civil Revision is allowed and the matter is remitted back for reconsideration. As regards costs of the civil revision, although the petitioner has been successful, he is to pay the costs to the opposite party who has been dragged to this Court for which she is not responsible. In case an application would have been filed in the revision under S. 24 of the Act, this Court would have awarded the litigation expenses. In the circumstances, the petitioner shall pay the consolidated cost of Rs. 150/- in the civil revision to the opposite party.

Revision allowed.

Binayak Chandra Pady v. Kamala Padhy Alias Padhiani .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Husband's) Arguments — Mr. U.C. Panda

Respondent's (Wife's) Arguments — Mrs. A.K. Padhi

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Binayak Chandra Pady v. Kamala Padhy Alias Padhiani .

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