A-R^. HIGH COURTOP CHHATnSCrARH AT BILASPUR SB: HOS'BLSSHSI JU8TICKVIJA7 KOm^.SfSIVABTAVA FII T APPEAL MO.196/2003 AppeUant :rll Praveeu Kuinar Shrivastava, Aged about 43 years, s/o. Late Stui K, Prasad, presenfty workuag as Guard aad posfed at Raigarh Railway Station, Raigarh, Tah. BB Dist Ksigar^ (CG). VCTSUS Resoondent: Smt, Seema, aged about 37 Years, w/o. Shri. Pravin Kuinar, C/o. Shri R.D. Lat, r/o. Kushalpur, Near KhoMio Talab, Purani Basti, Saatoslii Mata Chovs?k, Raipur, Tah. & Distt. Raipur (CG). PRESENT Shri P.R. Pataakar, Counsel for the appellan.t. Sliri Soiakaat Venna, Counsel for the respondciit. O R D B R COated 06/03/2006l This appeal under SectiDn 28 of the Hindu Mamage Act, 1955 has been ffled agam.st the order dated 10.9,2003 passed by tiie 2nd AdditbiMl District Judgp Durg m Civil Suit No. 10-iAi/Ol whereby the suit filed by the appeUant/hiisband for grant ofdeeree of nnffity of mamage was dismissed for noii-payinent of inranithly uiaintenance to the respondent/wife awarded under Section.24 of the Hindu Marriage Act (for short, "the Ac€} 2. The appetlant aad respondent were miariied m. acconlance with the Hiadu custom and rituals in the interyeaing n^ht of 29.2.1992 and 1.3.1992. The appellaut to aimul the inarriage by a decree of nuUity filed a petition under Sectk»u 12 of t the Act against the respoadent. During the pendency of fhe suit, on 23.6.1995, under Section 24 of the Act, fhe appeBant was ordered to pay Rs.400/- per month to respondent towards Uer inamtenance. 3. On 5.5.2003, respondent filed aa applfcation for dismissal ofthe suit oa tfae ground ofnon-payment ofmamtenance by the appeUaat since 23.5.2002. Applicatipn was opposed by the appeUant. The appeUaat ia his reply stated ftiat earUer he was depositiag mamtenance @ Rs.400/- per month as awarded by trial Court, but respondent by filing an application uuder Section 125 of fhe Cr.P.C. obtained ex-parte order from the Court of Judicial Magistrate, Firat GIass, Durg, who aUowed the respondent Rs. 1,500/- per inonth towanls, maintenance and the order came to his knowledge on 13.8,2002, thercfore, since fhen he te depositing Rs.1,500/- per m.onth towards Diamteaaiice payable to respondent. 4. Leamed Coiut below holding that the appellaat did not pay maintenance @ Rs.400/- per monfh fi-om 23.5.2002, therefore, disnussed the petition fUed by the appellant under Section 12 of the Act. .- 5. It is aot in dispute that after obtaming order from Matnmomal Court under Section 24 of thc Act respondeD.t^wife agaia preferred an application for grant of mamtenance under ri :I:?^1' Section 125 of tiie Cr.P.C. and obtaiaed a 6sah order from. fhe Judicial Magisteate, First Class, Durg, who vide ordcr dated k 30.8.2001 granted maintenance @ Rs.1,500/- per month. Adinittedly, the am.ount awarded by the Judicial Magistrate, First Class, Duxg is being paid by the appeUant/husband to the respondent. Respondent did not claiin fhat Judicial Magistrate, Firat Class, Duig ater excluding her old grant i.e., Rs.400/- per month aUowed by the Matrimonial Court has graated maiatenance @ Rs. 1,500/- per month to her. Therefore, in such circuinstances, it is to be presuined that the amouut of Rs.400/- per inonfh is merged ia fi-esh grant ofRs.1500/-. 6 . Under Section. 24 of the Act, inaintenance pendente lite and expeuses of proceedings are graated to wife or husband who has no independent iucoaie sufEcient for support of livelihood aad expenses to meet the cost of proceedings. Therefore, ifother party wiUfuIly ueglect to canyout the order passed by the Cpurt, the Court inay take recourae to its inherent power under Section 151 oftfae CPC. Having re^rd to fhe facts and cu-cumstancesi of fhe case and conduct ofthe party, dis-obeying thc order passed by fhe Court, the Coiirt may eifher stay the proceedio.gs if tfee proceediag has beeu initiated by the person against whom. older has been passed and even dismissed his petition or appeal as\ tiie case may be ifhe deUbeiately neglects to coniply wifh the order. If he/she is opposite party his/her defence may bc struck of. The object behiad it is fhat a peraon incapable to mam.taia himself/herself and for want of financial capacily is unable contest his/her case in order to get justi.ee may not be coiapeBed to to i I . ! Roshan take recourse of execution proceeding aud iavolve himseUyherseIf in another litigation, at the saine tiine to protect fhe interest of the 1 person who would suffer as a result of ofher party who wiUfully wifhhold payment disregarding court's order ia order to harass him/her and thereby attempt to iaterfere in fair participation of his/her ia gettiag justice. 7. Here in. the instaat case, appeBant without comiuitting aay breach was paying the mamtenaace @ Rs. 1500/- per m.0nth to fhe respondent, it was not the case of rcspondent/wife that she was gyanted Biamteiiance by Judicial Magistrate, First Class ia addition to Rs.400/- aUowed to her earlier ;by the Matrimonial Court, fherefore, payuig Rs.1500/- per monlh assumhig that it include Rs.400/- allowed earlier does not briug the appcUant in fhe category of fhose who wittfuUy ne^ected paying regular maintenancc, fherefore, his petition was not liable to be disnussed on the g?ound ofnon-coiapliance offhe order. 8. Iu fhe result, the mipugned order passed by the lower court dated 10.9.2003 is set aside. The case is remanded Uack to the tower coiut havmgjurisdiction to hear & decide the casewith a direction to re-admit the case and to decide the same ia accordance wifh law and fhe cvidence recorded during fhe pragmal trial shaB, subject to aU just exceptions, be evidence durmg the trial after remaad. Bofh. fhe parties shaU appear before fhe lower court. Itaving jurisdiction to hear and decide fhe case ou 12.5.2006. Certified copy as per rules. V.K.Shrivastava judge 1