Courts Can Stay Divorce Proceedings Instituted By Husband Until He Pays Arrears Of Maintenance To Wife: Karnataka High Court

The Karnataka High Court has recently held that courts can stay the divorce proceedings instituted by the husband until he pays arrears of maintenance amount to the wife as ordered by the court.

The observations were made, while the high court allowed a petition filed by an estranged wife and set aside the order of the trial court which had dismissed her application seeking stay on the divorce proceedings initiated by the husband for non payment of the arrears of interim maintenance.

A single judge bench of Justice Lalitha Kanneganti in its order said, "This court is coming across several cases where the husband will not pay the maintenance as ordered by the court and which attains finality but he insists for proceeding with the main case...In these pending matrimonial matters, when the order is passed for maintenance pendentilite, the party who is contesting the matter cannot tell the opposite party that I will proceed with the case and you can go before the executing court for recovery of money".

The high court noted that under Civil Procedure Code, there is a mechanism provided for execution of court order. However, in matrimonial cases there are thousands of execution petitions which are pending and in some cases the parties are not in a position to meet their basic necessities and the opposite parties in spite of not obeying the courts orders enjoy the further orders passed by the court, it observed.

It thus said, “In these matrimonial proceedings, the court while exercising the jurisdiction under Section 151 (Saving of inherent powers of Court) of CPC and under Order 6 Rule 16 (Striking out pleadings) of CPC, should either stay the proceedings or strike off the pleadings. This to some extent will subserve the ends of justice. It will also send a message to the concerned that they cannot get away with non-compliance of the orders of the court and deprive the other party from the fruits of the order.”

The trial court in its 2020 order had rejected the wife's application stating that the petition for maintenance is filed in 2016 and interim maintenance is granted by order of July 15, 2016 and till that time no execution petition was filed for recovery of arrears of interim maintenance. It had said that the wife is always at liberty to file an execution petition and recover the arrears of maintenance, if any. Considering the age of the petitioner and the fact that four years had elapsed, the trial court had declined to stay the further proceedings.

Before the high court the wife contended that the trial court failed to exercise its inherent jurisdiction to stay the proceedings in order to compel the husband/respondent to pay the arrears of maintenance. Meanwhile the counsel for the husband argued that when an order is passed granting maintenance, when the same is not paid, an available option to the wife is to file Execution proceedings but she cannot come up before this court seeking to stay the further proceedings.

The bench observed, “In the present case, the husband has filed the case for divorce. He wants to pursue the proceedings and he wants an order of divorce by opposing the petition filed by the wife, staying further proceedings till the maintenance is paid. But at the same time he does not want to comply with an order passed by the court. This kind of an approach by any litigant cannot be appreciated and encouraged by the court.”

“A party who has no respect to the orders of the court and on the face of it willfully violates the order cannot afford to submit before the court, that the court has to proceed with the matter. He cannot blow hot and cold at the same time," the bench added.

The high court observed that the whole purpose of granting interim maintenance to a woman is to enable her to "pursue judicial proceedings" and also to take care of the "basic necessities" required for a woman who is thrown out of the house.

"When blatantly and deliberately a person floats the orders of the court, still wants to seek further orders of the court that is where the court has to step in and the court shall exercise the powers under Section 151 of CPC," the court said.

The high court thereafter held that the trial court "failed to exercise the discretion" vested with it under Section 151 of CPC for doing "substantial justice to the parties".

It went on to allow the wife's plea and stayed all further proceedings till the arrears of maintenance are paid. It further said that if the arrears are cleared, the family court shall dispose of the matter before it in six months, noting that the matter had been pending for eight years.

Appearance: Advocate Chethan A C for Petitioner.

Advocate Narendra S for Respondent.

Citation No: 2024 LiveLaw (Kar) 419

Case Title: ABC AND XYZ

Case No: WRIT PETITION NO. 11721 OF 2020

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