Non compliance of order of maintenance by Husband-its effect
There can be no doubt that contumacious conduct or deliberate act not to comply with the order can be dealt with stiffly by dismissing the application or striking of the defence of the defaulter as the case may be. Before exercising the said power, court is to give a clear finding based on reasons and material to that effect.
9. Since the Court has the power to stay the proceeding or dismiss the same, the power should be exercised by doses. It should first stay the proceeding and give opportunity to the defaulter to pay the same. In spite of it where the default continues it might dismiss the application initiated by the defaulter in case, it comes to the conclusion that the nonpayment was deliberate and contumacious. However, the power should not be allowed to be utilised by a party to harass the other party to whom direction is given merely on account of non-payment where the circumstances would indicate that the nonpayment was on account of reasonable cause. In such cases, the party entitled to receive pendente lite maintenance and expenses of the proceeding can be allowed to execute the order and till then the proceeding can be stayed.
10. In the objection in the present case, it has been clearly stated that the petitioner is not in a position to pay the amount directed by the order. The trial court has not taken, into consideration its assertion in the objection to find out the correctness thereof and dismissed the same merely by the order to deem the non-payment as contumacious. The petitioner is not without any maintenance in this case although the same is held not to be sufficient for her maintenance and expenses of the proceeding. So far as litigation expenses, the same could have been executed by the aid and assistance of the Legal Aid and Advice Board constituted by the State Government under Article 39A of the Constitution. The Court could have stayed the litigation till then. These aspects of the matter would be material for consideration for the trial Court to decide whether the suit was to be stayed or dismissed in case it would have come to the conclusion that the petitioner had the financial position to pay the amount ordered. Where the finding would be that the financial condition of the petitioner deteriorated to the extent that he is not able to pay the amount to be paid, the result would be different depending upon the facts and circumstances.1
Orissa High Court
Binayak Chandra Pady vs Kamala Padhy Alias Padhiani on 7 May, 1986
Equivalent citations: AIR 1987 Ori 167
Bench: S Mohapatra
https://www.lawweb.in/2014/01/non-compliance-of-order-of-maintenance.html
