Repeated since there was no reply
FACTS:
1. Original divorce petition decreed ex parte after hotly contesting for 10 years. Set aside application filed by the respondent/wife u/o IX, R. 13 also dismissed by the Family Court observing that she was deliberately absent to drag the proceedings. No appeal filed either against the decree of divorce or the dismissal order in set aside application. Consequently the divorce decree attains finality.
2. Wife continues to appear before the Trial court to contest her maintenance case u/s 125. Also files fresh application for interim maintenance u/s 125 besides filing another suit for permanent injunction besides other applications. Faces difficulty in getting interim maintenance u/s 125.
3. 2 yrs after the divorce decree was passed / One and half years after the set aside application was dismissed by the Family Court, the wife filed a civil revision petition u/s 115 against the order dismissing the set aside application. ( Revision not maintainable since the order dismissing the set aside application was appealable only before the division bench of the high court. )
4. Delay was condoned in a routine manner despite objections and revision allowed. Decree of divorce set aside without setting aside the findings of the trial court in the impugned order, observing some error in the decree of divorce and O.P. restored with the specific purpose to give an opportunity to wife to cross examine the petitioner and to adduce her evidence.
5. During the pendancy of the original divorce proceeding interim maintenance order u/s 24 was passed by the Family Court. Neither a fresh application nor an application to restore the previous order u/s 24 was filed by wife during the restoration proceedings with the Family Court/High Court. As such no fresh order /order restoring the previous order was passed by the Family Court/High Court to enable the wife to claim interim maintenance u/s 24 for the period subsequent to the date of disposal of the original divorce proceeding.
6. Immediately after restoration of the O.P. by the trial Court, wife filed an execution petition claiming interim maintenance for the period subsequent to the date of disposal of the original divorce proceeding. E.P. was resisted stating that there is no scope for automatic revival/restoration of interim maintenance orders and the previous order can not be enforced for the period subsequent to the date of disposal of the original divorce proceeding. Since she failed to secure a fresh order/order restoring the previous interim maintenance order from the High Court she can not claim any interim maintenance on the strength of the previous order which remain lapsed. Moreover, the case was remanded back by the High Court with the specific purpose to enable cross examination of the petitioner and to adduce her evidence. (Since the matter had gone to the High Court, the Trial Court has no powers to restore the previous interim maintenance order).
7. Wife's counsel argues that it is a Technical objection. But the question of technicality is sustainable only when the decree of divorce was set aside by the trial court. Even in such cases the opposite party should be given an opportunity to be heard - to enable him to bring to the notice of the court the circumstantial changes affecting the financial wherewithal of the parties warranting revision, modification or cancellation of the order - to defend his case. Further, the executing court can not go behind the decree and should deal with the decree as it is.
8. Although sufficient opportunity was given to the wife to cross examine the petitioner/ adduce her evidence ( more than 3 years after restoration), she defaulted and cross examination of PW1 and respondent/wife side evidence was closed in her presence and proceeded with arguments. Restored case pending in the counter argument stage for the last 2 years. Court delaying orders on the execution petition ( obviously to help wife to drag the case).
ISSUES
1. There is no statutory provision for automatic revival/restoration of interim maintenance order. If the divorce decree is reversed by the High Court, only the High Court is vested with the authority to restore the interim maintenance order of pass a fresh order which will be valid till the disposal of the case by the Trial Court. Therefore question of technicalities do not arise at all and therefore the E.P. is not maintainable and liable to be returned over the the counter. Since the interim maintenance order/decree remain satisfied is it not a criminal offence to proceed with the E.P. Experts opinion please.
2. Since the revision proceeding is not maintainable as per s. 19 of the Family Court Act, it is not a proceeding under Hindu Marriage Act. Obviously, restored case remains as a proceeding under the Code and sec. 24 of the HMA is not applicable during the pendency of the restored proceeding. Continuity of the proceeding under Hindu Marriage Act is mandatory to reap all benefit of the Act. Experts' comment please.
3. Since the order restoring the case passed by the Single Jude is with out jurisdiction, the same is null and void ab initio, non est and not binding. In any case no benefit other than what is bestowed by the operating part of the order shall accrue to wife. Resultantly all consequential proceedings ( to claim interim maintenance for the post restoration period) remain infructuous. Expert's opinion pl.
4. As per the provisions of sec.115 of CPC, the revised order should put an end to the entire proceeding. Whereas by restoring a decreed case, the HC court has re opened the matter which is ex facie illegal. Since the revision proceeding was before the Single Jude, it can not be treated as an appeal which should be decided by 2 or more judges. Therefore the normal way to wriggle out of such situation is not available in this case.. There is no jurisdictional error alleged as the FC has jurisdiction to dismiss an application u/o 9, r.13. Exprerts comment pl. ( I have not mentioned the reason for setting aside the divorce decree by the HC, since it is so "BIAZARRE", that could agitate the Judicial standards, integrity etc. on the face of the order itself)
5. The case was restored by the High Court ( "remand" should be the more apt word) to enable the wife to cross examine/adduce her evidence. She failed to adhere to the HC directions ( for 3 yrs) and the cross examination/ respondent side evidence closed in her presence. ( Order XVII, Rule 3 of CPC). Although she filed an application to reopen the case from the chief examination stage, the same was dismissed after filing counter/arguments/counter arguments etc. As such how she can claim interim maintenance as if the case was restored for claiming interim maintenance only? Experts comments please.
4. Since the wife failed to cross examine the petitioner or adduce even her oral evidence, the evidence adduced by the husband remain unrebutted. What is purpose of adjourning the matter in the counter argument stage during the last 2 yrs ( Till date there is no finding/observation by the Court to the effect that payment of interim maintenance is in arrears or proceedings kept in abeyance pending disposal of E.P. as per the day to day order sheet - matter being simply adjourned). Is it not a case of abetting by the presiding officer to drag the case and frustrate the husband to harass, frustrate and compel him to purchase the divorce decree? Experts please
