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wife can not be compelled to file written statement unless i


 

Wife can not be compelled to file written statement unless interim maintenance is paid to her

 

Family - Applicability of Provision - Section 19 of Hindu Marriage Act, 1955 and Order VIII Rule 1 of the Code of Civil Procedure, 1908(CPC) - Present writ petition has been filed against order by which permission for filing of additional written statement was rejected by trial court - Whether a matrimonial petition under Act filed in court having jurisdiction under Section 19 of Act will be governed by constraints of Rule 1 of Order VIII of CPC after amendment of CPC? - Held, relied on decision of this Court passed in Vanmala w/o. Maroti Hatkar v. Maroti Sambhaji Hatkar case where husband committed default in complying with order of interim alimony and payment of expenses passed under Section 24 of Act - This Court held that in such a contingency, if offending party is petitioner, proceedings of Petition can be ordered to be stayed - If offending party is respondent, then defence of respondent can be struck out - Thus if compliance is not made by a Petitioner with an order passed under Section 24 of Act, proceedings of Petition can be stayed - Thus, law laid down by this Court is that unless an application made by respondent for grant of litigation expenses is decided, respondent is not even expected to file written statement - If such application is decided in favour of respondent, it is not expected of respondent to file written statement unless order granting litigation expenses is complied with - It is not necessary to go into wider question whether provisions of Order VIII of CPC as amended stand automatically incorporated in Rule 12 of Rules - Even assuming that what is incorporated is amended Rule 1 of Order VIII of CPC, same will apply mutatis mutandis - It will apply only to extent to which it is applicable considering provisions of Act and Rules - Apart from this, it is obvious that amended Rule 1 of Order VIII which provides for a time limit is inconsistent with provisions of Act and Rules and in particular Section 24 as well as Rules 10 and 12 of Rules - In this view of matter, time frame provided in Rule 1 of Order VIII, as amended, will not strictly apply to a proceeding of a Petition under Act - In view of above law laid down by this court, while passing impugned order, trial court has erroneously applied time frame provided in Rule 1 of Order VIII of CPC - In present case, petitioner had already filed written statement - Question was only of filing an additional written statement to amended Petition - In application made by petitioner, reasons were set out for not filing additional written statement earlier - This was not a case where petitioner was not contesting proceedings filed by respondent - Petitioner had already filed her written statement to original Petition - Looking to grounds incorporated in application trial court ought to have allowed said application and ought to have taken on record additional written statement which was tendered along with application - In circumstances, Petition succeed and impugned order is set aside - Additional written statement tendered by petitioner shall be taken on record - Petition is allowed
Citation: AIR2010Bom62, 2010(5)BomCR453, II(2010)DMC359, 2010 (1)AIR BOMR 354
Bombay High Court
Sau. Vanita Pravin Gaikwad vs Shri Pravin Pundlik Gaikwad on 30 September, 2009
Bench: A.S. Oka

http://www.lawweb.in/2014/04/wife-can-not-be-compelled-to-file.html

 
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