First Appeal No.398 of 2006

5th April, 2007

Petitioner Counsel: A. K. MEHROTRA and NISHANT MEHROTRA
Respondent Counsel: RAJESH SRIVASTAVA

Cases Cited:
Babu Lal Vs. M/s. Hazari Lal Kishori Lal, AIR 1982 SC 818 [Para 4,6]
Zilla Panchayat, Bijnor Vs. VIIth Addl. Distt. Judge, Bijnor, AIR 1998 All. 346 [Para 4,7]
Hari Singh Vs. Muhammad Said, AIR 1927 Lahore 200 [Para 8]
Piroj Shah & Company Vs. Qarib Shah, AIR 1926 Lahore 379 [Para 8]
Chand Dhawan (Smt.) Vs. Jawaharlal Dhawan, 1993(3) SCC 406 [Para 8]

JUDGMENT

AMITAVA LALA, J.:- Since the point for consideration is a question of law, the appeal is heard on the informal papers by the consent of the parties.

2. This appeal is primarily arising out of the decree for maintenance passed by the Additional Principal Judge, Family Court, Kanpur City on 7th December, 2005 under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as the Act) in Suit No.575 of 1999.

3. Learned counsel appearing for the appellant contended before this Court that the order which has been passed by the Court below is contrary to the settled position of law. A decree for divorce dated 4th September, 1999 passed by Joint Civil Judge, Senior Division, Thane, Maharashtra in Marriage Petition No.234 of 1997 is pre-existing. After passing decree for divorce by the appropriate Court of law, a suit or proceeding under Section 18 of the Act cannot be maintainable.

4. We find that upon considering certain judgments particularly AIR 1982 SC 818 (Babu Lal Vs. M/s. Hazari Lal Kishori Lal & others) and AIR 1998 Allahabad 346 (Zilla Panchayat, Bijnor Vs. VIIth Addl. Distt. Judge, Bijnor & others) the Court below held that although decree for divorce was passed by an appropriate Court of Law but when a restoration application is pending therein, the same will tantamount to pendency of that suit for the purpose of having maintenance by the wife under Section 18 of the Act, 1956.

5. In this context, certain dates are relevant to be recorded hereunder. The date of Marriage is 16th February, 1997. The date of decree for divorce is 4th September, 1999. The application for setting aside the ex-parte decree under Order IX, Rule 13 was made along with an application under Section 5 of the Limitation Act on 26th July, 2000. The same was also dismissed on 27th April, 2006. A further application for recalling of such order of dismissal of the application was made on 30th October, 2006 also along with an application under Section 5 of the Limitation Act, which is still pending.

6. Against this background, we have gone through the judgments which have been relied upon by the Court below. In paragraph 17 of the Supreme Court judgment reported in Babu Lal (supra), it has been held that the term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. We have seen therein that the discussion was made in connection with an application for execution. By analysis of the judgment also in accordance with settled law one aspect is very clear that an application for execution is a process of continuity for the purposes of enforceability of decree and as such, during the pendency of such type of application, it cannot be said that the proceeding is not pending.

7. Learned Single Judge held in Zilla Panchayat, Bijnor (supra) that the appeal must be deemed to be pending during the pendency of application for restoration. Although it has only persuasive value but since the learned Judge referred Supreme Court judgment therein, we feel discussion is needed.

8. According to us, there is gulf of difference between restoration and setting aside. There is also gulf of difference between restoration of original proceeding and restoration of the restoration application that too out of time prescribed by law. In case of restoration procedure laid down under Order IX, Rule 9 will appear but in case of setting aside ex-parte decree procedure under Order IX, Rule 13 of the Code of Civil Procedure will apply. In case of restoration normally no right can be said to be accrued by any party because decision is yet to be taken up. But in a case of ex-parte decree a valid right has already been accrued in favour of one which can only be upset by a valid application. Either an appeal or an execution is continuance of process but not the application of setting aside decree that too out of time. However, in such type of matters one aspect is common i.e. sufficient cause for non appearance. Such stage will come provided the delay is condoned. Unless the delay is condoned an application cannot be said to be valid application in the eye of law. Factually, the application had been made after about 10 months after passing the decree which was dismissed after about six years from making it. The application which is allegedly pending is nothing but an application for restoration of an application for setting aside that too out of time. Now the first stage would be condonation of delay of the restoration application. The second stage would be restoration of the application for setting aside the ex-parte decree. The third stage would be condonation of delay in making application for setting aside the decree. Thereafter only the application for setting aside ex-parte decree will survive. Presently it is an absurd situation to say that an application for setting aside ex-parte decree is pending. In AIR 1927 Lahore 200 (Hari Singh Vs. Muhammad Said & others) the Court relying upon earlier decision reported in AIR 1926 Lahore 379 (Piroj Shah & Company Vs. Qarib Shah) held that the proceedings consequent to an application for setting aside the ex-parte decree are not merely a branch of the suit which is terminated when the ex-parte decree is passed and the suit does not revive, if at all, until after the proceedings in the application are terminated successfully. It is not an application for re-hearing. It is not proceeding in the suit but distinct proceeding. Ultimately this question arose before the Supreme Court and it was held in 1993(3) SCC 406 (Chand Dhawan (Smt.) Vs. Jawaharlal Dhawan) as follows :

"So while sustaining her marriage and preserving her marital status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation, of the kind envisaged under Section 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus, when her marital status is to be affected or disrupted the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being in seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony".

"Not only that, the Court retains the jurisdiction at subsequent stages to fulfil this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The Court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under Sections 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial Court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption."

9. In para 25 of the aforesaid judgment the observation was made as under:

"We have thus, in this light, no hesitation in coming to the view that when by Court intervention under the Hindu Marriage Act, affection or disruption to the marital status has, come by, at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within the jurisdiction of that Court, to be altered or modified as future situation may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stand, preserved in codification under Section 18(1) of the Hindu Adoptions and Maintenance Act. The Court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the subject of maintenance."

10. Hence from the analysis of the aforesaid judgment it is crystal clear that when marital status is affected or disrupted by a decree under one law, the respondent cannot get ancillary or incidental relief by way of subsequent suit or proceeding under different law. However, it is still open to the respondent to proceed with her claim of maintenance in other forum.

11. Thus, we do not find any reason to enter into to the merit of the controversy particularly when the proposal for re-conciliation has been fallen through.

12. Hence the appeal is allowed. Order of the Court below stands set aside. No order is passed as to costs. However, the respondent is not debarred from claiming alimony before appropriate forum in accordance with law if otherwise available and if so advised.

Appeal allowed.