Being asked by many we are now providing free legal advice on Consequences of disobedience of the order of alimony pendente lite.
The power of the Court of ordering alimony pendente lite in a pending proceeding for matrimonial relief has been provided for, by Section 24, Hindu Marriage Act; Section 36, Indian Divorce Act; Section 36, Special Marriage Act; and Section 39, Parsi Marriage and Divorce Act, 1936.
But section 24, Hindu Marriage Act has a peculiar feature. There the relief has been extended to spouse of either sex, that is to say in appropriate case a husband too can claim alimony pendente lite.
There may be situation where the non-applicant refuses to pay the amount of interim maintenance and yet wants to proceed with the case.
In such a case, if the non-applicant is a petitioner, the court has jurisdiction to stay all further proceedings, in the case till he or she pays the amount, and if the non-applicant happens to be respondent, then the court may strike out his or her defence.
As observed in Rayden on Divorce, 11th edition., Pg.700 that for disobedience of an order for payment of alimony a charging order or garnishee may be made; or a judgement summons may issued, or proceedings may be stayed or the decree suspended till payment.
In Anita Karmakar Vs. Birendra Karmakar, AIR 1962 Cal 88. it was held that, a matrimonial proceedings was stayed at the instance of petitioning spouse till the respondent spouse complied with the lower court'' order of payment of alimony pendente lite.
Such stay due to non-compliance with the order of payment of alimony pendente lite was made in a series of subsequent cases- Bhuneswar Vs. Droplabai, AIR 1963 MP 259, D.V. Shindogi Vs. Saraswatibai, AIR 1969 Mys 16
Also read – Interim Maintenance Of Qualified Wife Under Section 24 of The Hindu Marriage Act,1955 With Landmark Judgements
In A. Susheelamma Vs. Raghunatha Reddy (1977)2 Andh WR 98, a proceeding for restitution of conjugal rights was allowed to be stayed till the payment of ad interim maintenance and litigation expenses. Despite the fact that such orders were executable, it was held inherent power should be exercised to stay the proceeding.
In Tara Vs. Jaipal 1946 ILR Cal 604 it was held that refusal to pay maintenance according to court's order is held to be a contempt.
In Prithwiraj Vs. Bai shiv Prabhakar Bai, AIR 1960 Bom 315 it was held that court has inherent power to strike off the defense of a party ordered to pay interim maintenance if the refusal be contumacious.
This view found in favour with the H.P. High Court which held when the proceedings were initiated by the wife for obtaining a decree for judicial separation and the respondent husband who was ordered to pay interim maintenance and expenses, deliberately and contumaciously flouts the order, his defence may be struck off by invoking inherent power. - Jal Singh Vs. Khimi Bhiku, AIRb1978 HP 45.
In Anuradha Vs. Santosh 1976 Del 246 ; Devi Vs. Sandhya 1985 Gau 97, Ravi Saran Prasad alias Kishore Vs. Rashmi Singh 2001 All 227. Court took the view that although there is no specific provision of the Hindu Marriage Act, yet the court has power to change the quantam of interim maimmainten at any time during the pendency of the proceedings, if any change of circumstances is shown by any party to the proceedings.
Section 35B Code of Civil Procedure reserves the power of the court to order payment of cost when a party fails to take steps he is required to take on the date of taking steps. Section 35 B C.P.C. has made the payment of cost a condition precedent to further prosecution Section 35B stands as under-
35B. Costs for causing delay.- (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-
(a) fails to take the step which he was required by or under this Code to take on that date, or
(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,
the court may, for reasons to be recorded, make an order requiring such party to pay to the other party such costs, as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of,-
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,
(b) the defence by the defendant, where the defendant was ordered to pay such costs.
Explanation : Where separate defences have been raised by the defendants or groups of defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or groups of defendants as have been ordered by the court to pay such costs.
(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.
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