Non-compliance with interim maintenance order cannot bar divorce proceedings: Orissa High Court

Orissa High Court dissolved the marriage of Akshaya Kumar Sahoo and Madhusmita Sahoo on grounds of cruelty and desertion, reversing a lower court's decision. The Family Court had previously dismissed Akshaya Kumar’s divorce petition due to non-payment of interim maintenance. However, the High Court held that failure to comply with interim orders could not prevent the continuation of divorce proceedings. The court awarded ₹2,00,000 as permanent alimony to the respondent, Madhusmita.

The appellant, Akshaya Kumar Sahoo, had initially filed for divorce in 2013 under C.P. No. 211 of 2013 on the grounds of cruelty and desertion. However, his petition was dismissed in 2014 for failure to pay interim maintenance to his wife as directed by the court. He later refiled the case, but the Family Court dismissed it, citing non-compliance with the earlier interim maintenance order under Order IX, Rule 9 of the Code of Civil Procedure (CPC), which precludes a fresh suit when a previous suit is dismissed for default.

Akshaya appealed the Family Court’s decision, arguing that the dismissal was erroneous as the original case was not dismissed for non-appearance, but for non-payment of maintenance.

The key issue before the High Court was whether non-payment of interim maintenance in a previous divorce petition could bar the appellant from refiling for divorce on the same grounds.

Akshaya Kumar's counsel contended that the Family Court had wrongly applied Order IX, Rule 9, which only bars fresh suits in cases dismissed for non-appearance, not for non-payment of interim maintenance. He argued that the failure to comply with an interim maintenance order should not preclude his right to seek divorce.

The respondent, Madhusmita, opposed the appeal, asserting that the earlier dismissal of the petition barred Akshaya from seeking divorce again without first complying with the maintenance order.

The Orissa High Court rejected the Family Court’s reasoning and clarified that Order IX, Rule 9 CPC did not apply to dismissals based on non-payment of interim maintenance. The court held:

"There is no provision in the Family Court’s Act, Hindu Marriage Act, or Code of Civil Procedure that empowers dismissal of a suit for failure to comply with an interim maintenance order."

The court found that the appellant had succeeded in proving cruelty and desertion, the grounds on which the marriage was sought to be dissolved.

The High Court granted the divorce, dissolved the marriage, and ordered ₹2,00,000 as permanent alimony to be paid by the appellant to the respondent. The court also directed that the amount be deposited within three weeks. The respondent’s lawyer accepted the alimony in court, and the respondent agreed to withdraw pending execution and criminal cases.

Date of Decision:25th September 2024

Akshaya Kumar Sahoo vs. Madhusmita Sahoo @ Anusuya