Judgment :- C.M.A.No.1192 of 1993: This is an appeal filed by the respondent in F.C.O.P.No.757 of 1991 on the file of Family Court, Madras, against an order made on 28. 1993 by the Principal Judge. The original petition was filed by the respondent herein for restitution of conjugal rights. It is not necessary to set out the allegations made in the original petition for the purpose of this appeal. The appellant is contesting the said petition, after filing a counter statement. The respondent filed I.A.No.578 of 1992 for grant of interim maintenance at the rate of Rs. 1,500 p.m. till the disposal of the main original petition and also for Rs.3,000 by way of legal expenses to conduct the original petition. The appellant filed a counter affidavit in that petition. When that petition was pending, the respondent filed a memo on 33. 1993. According to the memo, no documentary proof was available to the respondent to prove the properties owned by the appellant. A request is made in the memo to treat the interlocutory application as main original petition and dispose of the same, without proof of documentary evidence. Another memo was filed on 3. 1993, by the respondent, in which some details of the properties owned by the respondent’s parents are mentioned. To that, a reply memo was filed by the appellant on 6. 1993. The appellant has stated that he was working as an accountant at Holy Redeemer’s Finance Corporation honorarily and received no salary or wages. The Principal Judge passed an order in the interlocutory application on 17. 1993, directing the appellant to pay a sum of Rs.500 by way of maintenance, from the date of the application, namely, 18. 1992, till the disposal of the original petition, plus a sum of Rs.1,500 by way of legal expenses. He calculated the total amount at Rs.8,100 and directed the appellant to pay the sum on or before 8. 1993. He posted the original petition to 8. 1993 for payment of arrears of maintenance. 2. On 8. 1993, according to the order of the learned Judge, the appellant was absent and as he did not pay the interim maintenance or litigation expenses, as ordered by court, his defence was struck off. Referring to the factum of striking off defence, the learned Judge proceeded to dispose of the main original petition. 2. On 8. 1993, according to the order of the learned Judge, the appellant was absent and as he did not pay the interim maintenance or litigation expenses, as ordered by court, his defence was struck off. Referring to the factum of striking off defence, the learned Judge proceeded to dispose of the main original petition. The respondent was examined as P.W.I. Relying on the evidence given by the respondent, the learned Judge granted a decree for restitution of conjugal rights under Sec.32 of the Indian Divorce Act. Thus, the original petition was allotted. Aggrieved by the same, the appeal has been preferred by the appellant who is the husband. 3. We have no hesitation to hold that the order of the learned Judge striking off the defence of the appellant herein on 8. 1993 is wholly unsustainable. No doubt, an order directing payment of maintenance was made by the learned judge on 17. 1993, but that order did not contain a default clause that, in the event of non-payment of maintenance, the defence of the appellant might be struck off. In the absence of such a clause in the order, the learned Judge erroneously struck off the defence which he is not entitled in law. Even if there had been such a clause, the court should consider whether on the facts, the defence should be struck off. 4. The question has been considered in detail in Mahalingam Pillai v. Amsavalli, (1956)2 M.L.J. 289 , where a learned Judge of this Court, after referring to the English Law and American Law and the position under the various Divorce Acts including the Indian Divorce Act, said: "In India the Divorce Act, 1869, is silent as to mode of enforcement of decrees and orders for payment of alimony pendente lite and must therefore be enforced according to the provisions of the Code of Civil Procedure for the execution of decrees. It cannot be enforced by strict proceedings in contempt. White v. White, Contra Leadis v. Leadis. It cannot be enforced by strict proceedings in contempt. White v. White, Contra Leadis v. Leadis. But under the Indian Divorce Act, by reason of Sec.7 which makes the reliefs to be granted as conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being gives relief, the Court can if the husband is the petitioner stay the proceedings Yorkule v. Christima or suspend or refuse to make a decree absolute until the alimony pendente lite ordered is paid or grant injunction or appoint receiver. Some decisions however have gone to the extent of saying that where the husband is the respondent his defence should not be struck out but he should be proceeded against for contempt: Codd v. Codd, Tarasingh v. Falpal Singh. But as the order for payment of alimony pendente lite does not create a legal debt but it is only a liability to pay, it is purely a personal allowance and the right to alimony cannot be al-ienanted or attached Campbell v. Campbell, Smith v. Smith, Watkins v. Watkins, Wallas Ltd. v.Lagge." Bearing these principles in Mind, if we examine the facts of the case we find, that the order of Basheer Ahmed Sayeed, J., directing the husband to pay alimony pendente lite has been contumaciously disobeyed. On account of the fact, however, that this payment has not been made a condition precedent for the hearing of the appeal the appeal cannot be straightaway dismissed and an opportunity should be given to the husband either to pay up or in the alternative the appeal would stand dismissed by a fixed date after the expiry of a reasonable time given to him to comply with the order........" 5. In Jaganmohan Rao v. K.Swarupa, 77L.W. 488, Chief Justice Ramachandra Iyer held that striking out a defence is a serious matter, and it has to be done after taking every circumstance into consideration. It is worthwhile extracting the relevant passage in the judgment which reads as follows: ".....At the same time, I am of opinion that the order of the learned Judge is not in accordance with sound rule of procedure. Striking out a defence is a serious matter, and it has to be done after taking every circumstances into consideration. It is worthwhile extracting the relevant passage in the judgment which reads as follows: ".....At the same time, I am of opinion that the order of the learned Judge is not in accordance with sound rule of procedure. Striking out a defence is a serious matter, and it has to be done after taking every circumstances into consideration. There can be no anticipatory or conditional order for striking out a defence for the simple reason that the Court has got to consider the materials as they exist on the date when the order for striking out is passed. In the present case, what the learned Judge had done is to strike out the defence a month after the date of the order if a particular thing was not done. An order of that kind would preclude even the court from taking into account the relevant circumstances on the date when the order is to become operative whether the default should be condoned or not. It is extremely undesirable that courts should so bind themselves. While, therefore, holding that it will be competent for the court in a matrimonial action to strike out the defence if there be proved contumacy on the part of the party, I must also say that an order striking out the defence must be a present and not a prospective order to come into existence on an uncertain event happening or not a prospective order to come into existence on an uncertain event happening or not happening. Such conditional orders are no doubt passed in discretionary matters; but they are inappropriate to orders contemplating a striking out of a defence to an action. I am, therefore, unable to sustain the order of the lower court......." 6. We entirely agree with the reasoning contained in the abovesaid two judgments. We hold that the order of the Family Court dated 8. 1993, striking off the defence of the appellant is unsustainable. Consequently, the disposal of the main original petition by the learned Judge, on the footing that there was no defence by the appellant, is equally unsustainable. Hence, the order date 28. 1993 made in Family Court O.P.No.757 of 1991 is set aside and the matter is remanded for fresh disposal in accordance with law. Accordingly, the civil miscellaneous appeal is allowed. 7. Hence, the order date 28. 1993 made in Family Court O.P.No.757 of 1991 is set aside and the matter is remanded for fresh disposal in accordance with law. Accordingly, the civil miscellaneous appeal is allowed. 7. There is another original petition filed by the appellant herein for divorce as against the respondent and the same is pending as O.P.No.174 of 1991 on the file of the Family Court, Pondicherry. The appellant filed Tr.C.M.P.No.l4189of 1991 in this Court for transferring O.P.No.757 of 1991 from the Family Court, Madras to the Family Court, Pondicherry, in order to try it along with O.P.No.171 of 1991. Before that petition came up for orders on 8. 1992 the petition filed by the appellant in the court at Pondicherry was disposed of, as the respondent remained ex.parte. The prayer of the appellant was granted by the Family Court, Pondicherry. Hence there was no question of transferring the proceedings pending in the Family Court at Madras, to the court at Pondicherry. Consequently, the transfer C.M.P. was dismissed on 9. 1992. Subsequently, the respondent filed an appeal in C.M.A.No.356 of 1992 in this Court against the ex parte order of the Family Court at Pondicherry. The appeal was allowed by a Division Bench of this Court by order dated 13. 1993. The ex parte order passed by the Family Court at Pondicherry was set aside and the petition was remitted to that court to be disposed of in accordance with law. Thus O.P.No.174 of 1991 is again pending on the file of the Family Court at Pondicherry. 8. Now that we are remanding this O.P.No.757 of 1991 to the Family Court at Madras, we are considering the question whether the two original petitions should be heard by the same court together. We find the evidence will be the same and the interest of justice requires a joint trial of both the original petitions by the same court. The respondent herein has no objection to the original petition at Madras to be transferred to the Family Court at Pondicherry as she is now residing at Pondicherry. Hence, we exercise our suo motu power under Sec.24 of the Code of Civil Proce-dure and transfer O.P.No.757 of 1991 on the file of the Principal Judge, Family Court, Madras, to the file of the Family Court at Pondicherry to be tried along with O.P.No.174 of 1991 pending on its file. 9. Hence, we exercise our suo motu power under Sec.24 of the Code of Civil Proce-dure and transfer O.P.No.757 of 1991 on the file of the Principal Judge, Family Court, Madras, to the file of the Family Court at Pondicherry to be tried along with O.P.No.174 of 1991 pending on its file. 9. The entire records in F.C.O.P No.757 of 1991 have been brought to this court for the purpose of this appeal. It is not necessary to send back the records to the Family Court at Madras, so that they may be transferred in turn to the Family Court at Pondicherry. That will only involve unnecessary delay and a cumbersome procedure. Instead, we direct the Registry of this Court to send the records directly to the Family Court at Pondicherry, with a memo that the said court must take it on file to be tried along with O.P.No. 174 of 1991. A copy of this order shall also be sent along with the records. Apart from that, the Registry must also send a separate memo to the Family Court at Madras, informing the said Court that the original petition has been transferred by the order of this Court to the Family Court at Pondicherry, and appropriate entries may be made in the register in that court at Madras. 10. We direct the Family Court at Pondicherry to take up both the original petitions together for trial and dispose of the same on or before 13. 1994 and send a report to this Court. The civil miscellaneous appeal is allowed on the above terms, parties will bear their respective costs. C.R.P.No.3099 of 1993: This civil revision petition is filed by the husband against the order of maintenance passed by the Principal Judge, Family Court at Madras. We have earlier referred to the circumstances under which the order of maintenance has been passed. Learned counsel for the petitioner points out that there is no evidence on record on the side of the respondent to prove the income earned by the petitioner and the court below erred in granting a sum of Rs.600 p.m. by way of maintenance and Rs.1,500 for legal expenses. According to the learned counsel, the order is based on surmises and conjectures and not on any evidence. 12. According to the learned counsel, the order is based on surmises and conjectures and not on any evidence. 12. No doubt the order of the learned Judge is not happily worded, but however, we find sufficient material on record as at present to sustain the grant of interim maintenance to the respondent. In the main original petition, the respondent has categorically stated in paragraph (3) that the petitioner herein is working as Clerk in Holy Redeemer’s Finance Corporation, Pondicherry. In the Counter Statement filed by the petitioner there is no denial of the said averment. On the other hand, in paragraph (2), it is stated by the petitioner that the allegations in paragraph (3) of the petition are only partly correct. As he has not denied this averment specifically, it goes without saying that he accepts the said averment as correct. 13. When the respondent filed the application for interim maintenance, she has stated in the affidavit filed in support thereof that the petitioner herein has got ample means and valuable properties in Pondicherry getting a rental income of more than Rs.8,000 per mensem and his salary would be Rs.3,500. In the counter statement the petitioner has denied that he has got properties and is getting a rental of Rs.8,000 per mensem. He also denied that he is getting a salary of Rs.3,500 from a firm. He has denied that he is employed. He has stated “I am not employed at present”. Again, in paragraph (5) of the counter affidavit, he has stated that he is unemployed and is living at the mercy of his aged patents and that he is not earning even a single paisa. We have already referred to the memos filed by the petitioner as well as the respondent before the Family Court. Thus, no evidence was adduced as such before the Family Court in support of the claim made by the respondent in the application for interim maintenance. However, the statement in the original petition and the absence of denial in the counter statement filed by the petitioner herein will prove that the petitioner was employed at least at the time when the original petition was filed. It is also admitted in his reply memo dated 6. 1993 that he was working at Holy Redeemer’s Finance Corporation, but he has stated that he was working honorarily. It is also admitted in his reply memo dated 6. 1993 that he was working at Holy Redeemer’s Finance Corporation, but he has stated that he was working honorarily. That statement is given only after a period of nearly two years since the filing of the original petition. That shows that it is an after-thought. Hence, we are unable to accept the version of the petitioner that he is not employed and that he is wholly depending on his parents. If he was employed earner and lie-was out of employment at the time of petition for maintenance, he ought to have given the details by producing some certificate to that effect. In the absence of any particulars given by the peti firmer, we proceed on the footing that the petitioner is employed and is earning some amount. No doubt, there is no evidence to prove the exact caning, in the original petition the respondent has stated that the petitioner is employed in Holy Redeemers Finance Corporation, Pondicherry, which is not denied. Rut no certificate has been produced by the petitioner to show that the income earned by him is nil and that he is working honorarily. In the absence of such evidence, we are not able to find fault with the conclusion of the learned Judge that the petitioner was earning at least Rs.3,000 p.m. On that basis, the learned Judge has calculated that the amount of maintenance payable to the respondent will be Rs.600 p.m. 14. Under Sec.36 of the Indian Divorce Act, the court on being satisfied of the truth of the statements contained in the petition for alimony, may make an order for payment of alimony, pending the suit as it may deem just. The proviso to Sec.36 of the Act states that alimony pending the suit, shall not exceed one fifth of the husband’s average net income for the three years next proceeding the date of the order. It is on that footing, the learned Judge fixed the amount as Rs.600 p.m. We do not find any error in the calculation made by the learned Judge. .15. When the appeal was being argued, it was submitted by learned counsel for the appellant that the respondent has forcibly entered into his house in Pondicherry on the strength of the order given by the Family Court for restitution of conjugal right. .15. When the appeal was being argued, it was submitted by learned counsel for the appellant that the respondent has forcibly entered into his house in Pondicherry on the strength of the order given by the Family Court for restitution of conjugal right. It was also submitted by him that she had given a letter to the police authorities when a complaint was made by him wherein she has stated that she would vacate the house, if the order of the Family Court was set aside. It was therefore submitted by learned counsel for the appellant that the respondent should be directed to vacate the premises in which the appellant is residing. After hearing counsel on both sides, we think that it would be just if the respondent is permitted to live in a portion of the house of the petitioner at least during the pendency of the original petitions in the Family Court. Learned Counsel for the respondent submitted that the ground floor of the house in which the appellant is living is vacant and that the respondent may be permitted to live there. Learned counsel for the appellant has ascertained from his client that the said portion is vacant and the has no objection to the respondent residing in the said portion till the disposal of the original petitions. He has also stated that neither the appellant nor his parents would interfere with the occupation of the respondent of the ground floor during the pendency of the proceedings. We also direct the respondent not to interfere with the possession of the appellant and his parents of the first floor of the same house. Where they are residing. She shall vacate the premises if the original petitions are decided against her. On that condition, we permit the respondent to live in the house of the appellant in the ground floor during the pendency of the proceedings. Such permission is granted on the basis of the consent of the appellant. .16. In view of the fact that we have now permitted the respondent to live in a portion of the house, she will have no necessity to search for a premises for her accommodation and pay rent. Therefore to that extent the amount of maintenance awarded to her should be reduced. Taking all the facts and circumstances of the case, we are of the opinion that a sum of Rs. Therefore to that extent the amount of maintenance awarded to her should be reduced. Taking all the facts and circumstances of the case, we are of the opinion that a sum of Rs. 100 should be deducted from the amount awarded by the lower court. It is not in dispute that the respondent is in occupation of a portion of the house of the appellant from 10. 1993. Hence, the appellant will be liable to pay a sum of Rs.500 p.m. only by way of maintenance from 10. 1993, onwards till the disposal of the original petitions. As regards the period from 18. 1992 to 30.9.1993, the order of the learned Judge granting Rs.600 p.m. will stand. The order granting Rs.1,500 towards legal expenses will also stand. Thus the appellant will be liable to pay a total sum of Rs.8,100 by way of maintenance upto 30.9.1993. He will also be liable to pay a sum of Rs.500 for October, 1993 and another sum of Rs.500 for November, 1993, thus making a total of Rs.9,100. The amount due for December, 1993 will be Rs.500, making a total of Rs.9,600. The appellant shall pay the sum of Rs.9,600 to the respondent on or before 1. 1994. He shall also pay the sum of Rs.1,500 towards legal expenses on or before the same date, viz., 1. 1994. As regards the future, appellant shall pay a sum of Rs.300 for the month of January, 1994 on or before 7th of February, 1994 and similarly on or before the 7th of every succeeding month. 17. This civil revision petition is ordered accordingly. There will be no order as to costs.