Divorce Petition can be dismissed or not if interim maintenance is not paid

In Vanmala v. Maroti Sambhaji Hatkar, MANU/MH/0032/2000, a learned single Judge of Bombay High Court pointed out the difficulties in the wife in executing the order in the following words, "The remedy of execution is not an easy remedy. The execution does not at all provide short cuts to the destination. The difficulties of a successful litigant begin when he succeeds to obtain an order in his favour. Driving out a penniless wife to initiate a separate execution proceedings for the purpose of recovery of arrears of interim alimony and expenses of the proceedings frustrates the very purpose and spirit of Section 24 of the Hindu Marriage Act. The approach adopted by the learned Matrimonial Court makes the very purpose of Section 24 of the Hindu Marriage Act redundant and nugatory. .... A Court can, in exercise of its powers under Section 151 of the Civil Procedure Code, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumaciously flouts the order of the Court..... Similarly, if the erring party is the respondent, the Court can strike off the defence of such a party if it is found that the respondent is deliberately flouting the orders of the Court. .... In befitting situation and in appropriate circumstance, the Matrimonial Court should not hesitate to invoke the inherent powers under Section 151 of the Civil Procedure Code in the matter of implementation of order with regard to interim alimony and the expenses of the litigation by staying the proceedings filed under the Hindu Marriage Act for non-compliance of the order passed under Section 24 of the aforesaid Act and by striking off the pleadings of defaulting party." (g) In Kannamma v. Y. Subramaniam, MANU/TN/0716/1997 : 1997 (1) Law Weekly 637, a learned single Judge of this Court dealing with a similar question, ruled as under, "... If the order of the court below is not obeyed, petitioner herein (wife) is entitled to initiate proceedings against the husband for disobedience of orders of Court. At the same time, the lower court also will consider whether it should continue to stay the trial or whether it should dispose of the main petition by dismissing the same for non-compliance of the order. If the Court feels that some more time has to be given for compliance of the Order, this order shall not stand in the way. In such a case, further proceedings of the main petition shall stand stayed. Even during the period of stay, respondent is bound to pay maintenance to both the children and alimony to the petitioner at the rates fixed by the earlier order of the court below. If the court below is inclined to grant some time for the husband to make the payment, it should not adjourn the main H.M.O.P. indefinitely, and it is made clear that whenever the trial begins, the entire amount due as on that date must have been paid." 6. In view of the above, even if it is held that the learned Family Court can pass an order, in exercise of powers under section 151 of the Code of Civil Procedure, either to dismiss the Hindu Marriage Petition and/or refuse to grant any relief in the Hindu Marriage Petition on failure on the part of the husband/defaulting party to clear the arrears of maintenance or defence of the defaulting party can be struck off, as in the present case, as observed hereinabove, no opportunity has been given to the appellant husband to clear the arrears within reasonable time and on failure to clear the arrears, Hindu Marriage Petition can be dismissed or defence of the defaulting party/husband can be struck off. IN THE HIGH COURT OF GUJARAT AT AHMEDABAD First Appeal No. 202 of 2016 Decided On: 21.07.2016 Pravinsinh Himmatsinh Solanki Vs. Induben Solanki Hon'ble Judges/Coram:M.R. Shah and A.S. Supehia, JJ. Citation:AIR 2016 (NOC) 713 Guj