DELHI HIGH COURT
Gaurav Sondhi vs Diya Sondhi
DATED: 3 May, 2005
ACTS: Section 24 of the Hindu Marriage Act
Mukul Mudgal, J.
1. This petition under Section 115 CPC by the petitioner/husband had originally challenged the order dated 21st July, 2003 which held that the issue of delay in filing of written statement and its consequences shall be considered after the decision in the proceedings under Section 24 of the Hindu Marriage Act. The learned counsel for the petitioner has submitted that this may not be the correct position in law as well as in equity because once an interim order for maintenance and litigation is passed, there is no disability on the part of the respondent wife to file a written statement/reply and this should not be delayed further. I am of the view that in matrimonial matters, the Court should ensure that interim maintenance is granted expeditiously and litigation expenses are paid to the wife. Once the litigation expenses and interim maintenance are paid to the wife, the Court should ensure that the written statement/reply be filed within a reasonable time thereafter.
2. The counsel for the respondent/wife, however, pointed out that the maintenance awarded is not being regularly paid to her and the petitioner/husband is in arrears. Both the counsel for the petitioner/husband, Shri Sanjay Jain and the respondent/wife, Shri Vivek Sood have made useful suggestions in public interest to alleviate hardship to a spouse judicially found to be deserving maintenance.
3. In dealing with matrimonial matters, this Court has noticed that even though interim maintenance/maintenance has been awarded to the wife and/or the child, the payment is often not made regularly per month and the recipient wife or child are often at the mercy of the whim and fancy of the husband/father. More often than not, the ordered monthly maintenance is not paid every month but paid cumulatively on the next date of hearing for the intervening months. The court dates are often spaced more than 4 to 5 months apart due to the overcrowded schedule of the matrimonial courts. Thus a judicial order determining maintenance is rendered nugatory and ineffectual during the interregnum. Expenses are incurred for survival and sustenance regularly by the recipient and the daily needs of the wife/child cannot await the next date in Court. Maintenance to a wife and child is ordered when economic circumstances indicating want and need have been judicially determined. Maintenance amount is paid in the nature of subsistence and sustenance and a belated payment sporadically does not serve the aim and object of the payment of maintenance. Since expenses for sustenance are incurred regularly the staggered and delayed payment may end up defeating the objects behind ordering payment of maintenance. The grocery bill, rent payment, school fees, telephone, electricity and water dues are required to be paid on the due date and will not await the contingency of the receipt of the payment on a future date in Court. It has thus become necessary to ensure that maintenance payment to a wife/child is made at least on a regular monthly basis and defaults for no justifiable cause ought not to go scot free without sanctions.
4. The matrimonial courts should follow the following procedure while granting interim maintenance/maintenance:
(i) Whenever maintenance/interim maintenance is ordered, the Court will direct that it will be paid on or before 10th day of every month unless the Court finds that the nature of the employment of the husband and his manner of income makes such monthly payments impractical. In such a situation appropriate orders may be passed which shall take into account the circumstances of the husband which warrant departure from the time bound monthly payment directions contained in this order. ;
(ii) whenever the wife has a bank account and indicates it, such payment may directly be deposited in such bank account every month before the 10th day of the month.
(iii) The payment shall be made to the wife/child and in case of any difficulty in receiving or tendering the payment, it should be made through counsel. The order of deposit in Court needlessly makes it difficult for the wife to withdraw sums from the registry of the concerned court, apart from adding unnecessarily to the burden of the Court’s registry. If for good reasons upon finding difficulty in payment to a wife and her counsel the deposits in Court are made such deposits should be in the name of the wife by a draft/crossed cheques, which may be retained on the court file for retrieval by the wife without the time consuming process of deposit in the Court account and subsequent withdrawal by the recipient;
(iv) In case there is first default for payment of maintenance, the Court may condone it. However, in case of second default without justification, it will be open to the Court to impose a penalty up to 25% of the amount of monthly maintenance awarded;
(v) In case there is third or fourth default, the penalty may go up to 50% of the monthly amount of maintenance upon the court finding that the default was not condonable or contumacious in nature.
(vi) The Court must ensure that the orders of maintenance are not a mere rhetoric and are meaningful and effective and give real sustenance and support to the destitute wife and/or the child.
(vii) In case interim maintenance is being paid and adequate litigation expenses have been awarded to the wife, it should be ensured that the written statement/reply is filed within a reasonable time.
(viii) However, in judging the nature of default the relative affluence of the husband and the regular nature of his occupation and income will be taken into account. Obviously husbands having irregular employment and/or daily wages or those having casual employment would be entitled to have their defaults viewed more liberally.
6. The learned counsel for the respondent is granted 8 weeks’ time to file written statement before the trial Court and the written statement shall be filed not later than 7th July, 2005. Replication thereto, if any, be filed within four weeks thereafter.
7. A copy of this order be sent to the District Courts for circulation to the Courts hearing matrimonial matters. It is directed that all orders for maintenance will henceforth be passed in accordance with this judgment. The arrears, if any, in the present case payable to the respondent wife shall be cleared on or before 7th July, 2005.
8. The revision petition and all pending applications stand disposed of with the above directions.
Equivalent citations: 120 (2005) DLT 426, 2005 (82) DRJ 295