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2010 DIGILAW 1743 (PNJ)

Hari Singh v. Bholi

2010-05-20

RAJESH BINDAL

body2010
JUDGMENT Rajesh Bindal J. - Challenge in the present appeal is to the judgment of the learned court below whereby petition filed by the appellant-husband under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”) for divorce, was dismissed 2. Briefly the facts of the case are that the marriage of the parties was solemnised as per Sikh rites in October 2003 at Village Talwandi Rai Dadu, Tehsil Ajnala, District Amritsar. After the marriage, the parties resided at their matrimonial home. The marriage was consummated and one male child was born out of the wedlock, who is presently residing with the mother. It was alleged that after some time of the marriage, the respondent started treating the appellant with cruelty. She always used to abuse him and his family members. She refused to prepare the meals. She insulted the appellant many times in the presence of his relations and friends and used to throw utensils on the face of the appellant. It was also alleged by the appellant that she threatened to commit suicide and involve the appellant and his family members in a false case. On 12.5.2005, the respondent wife left the matrimonial home and also took away minor child and gold ornaments and valuable clothes, etc. Thereafter, she never returned to her matrimonial home, which resulted into filing of petition seeking divorce on the aforesaid grounds. 3. The respondent filed reply to the petition denying all the allegations levelled against her and stated that as her parents could not fulfill his dowry demands, he has filed this petition by concocting a false story. 4. The learned court below after considering the evidence on record, dismissed the petition filed by the appellant-husband for divorce vide judgment dated 14.12.2007. Aggrieved against the judgment of the learned court below, the husband has filed appeal before this court. 5. During the pendency of the appeal, the wife filed Civil Misc. No. 9030/CII of 2008 under Section 24 of the Act for grant of maintenance pendente lite, as also the litigation expenses. Upon notice, the application was contested by the husband. The said application was allowed by this Court vide order dated 25.2.2009, granting Rs. 1,000/-per month as maintenance pendente lite and Rs. 5,500/-as litigation expenses. 6. No. 9030/CII of 2008 under Section 24 of the Act for grant of maintenance pendente lite, as also the litigation expenses. Upon notice, the application was contested by the husband. The said application was allowed by this Court vide order dated 25.2.2009, granting Rs. 1,000/-per month as maintenance pendente lite and Rs. 5,500/-as litigation expenses. 6. Learned counsel for the respondent submitted that more than one year has elapsed but the appellant has not paid the maintenance pendente lite and litigation expenses as per order dated 25.2.2009. She has prayed for striking off defence of the appellant on account of non-payment of amount of maintenance pendente lite and dismissal of appeal in her favour. In support thereof, reliance was placed on Paramjit Kaur vs Kashmir Singh 1993 (3) R. R. R. 538, Balwinder Kaur vs Kashmir Singh 1993 (3) R.R.R. 539, Rani vs Parkash Singh 1996 (2) P.L.R. 219, and Ramesh vs Rajpati 2003 (3) P.L.R. 761. 7. While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the appellant-husband submitted that she had never treated him as her husband. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. He submitted that he had written a letter to his client on 1.2.2010 and also contracted on phone and advised him for clearance of the aforesaid dues but he has failed to do so. It was submitted by him that the evidence led by the appellant before the trial court be considered and instead of striking off defence of the respondent, the appeal be heard on merits. 8. Heard learned counsel for the parties. 9. In Balwinder Kaur's case (supra), this court held that once the defence of the husband is struck off on account of non-payment of litigation expenses and maintenance pendente lite, the wife is entitled to the relief prayed for in the appeal. The facts in the case in hand are also similar. 10. In Rani's case (supra), this court allowed appeal filed by wife against decree of divorce after the defence of the husband was struck off on account of non-payment of maintenance as fixed under section 24 of the Act. The facts in the case in hand are also similar. 10. In Rani's case (supra), this court allowed appeal filed by wife against decree of divorce after the defence of the husband was struck off on account of non-payment of maintenance as fixed under section 24 of the Act. Relevant para 7 of the judgment is extracted below:- “No doubt, wife can file a petition under Order 21 Rule 37 CPC for the recovery of this amount and the husband can be hauled up under the contempt of Courts also for disobedience of the aforesaid Court's order, but Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and for expenses of proceedings to a needy and indigent spouse. If this amount is not made available to the applicant, then the object and purpose of this provision stand defeated. Wife cannot be forced to take time consuming execution proceedings for realising this amount. The conduct of the respondent-husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defence can be struck out. No doubt, in this appeal he is respondent. His defence is contained in his petition filed under Section 13 of the Act. In a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram, 1975 H.L.R. 15; Gurdev Kaur v. Dalip Singh, 1980 H.L.R. 240; Smt. Surinder Kaur v. Baldev Singh, 1980 H.L.R. 514; Sheela Devi v. Madan Lal, 1981 H.L.R. 126 and Sumrati Devi v. Jai Parkash, 1985 (1) H.L.R. 84 it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defence is to be struck out. The consequence is that the appeal is to be allowed and his petition under Section 13 of the Act is to be dismissed.” 11. In Ramesh's case (supra), this court opined that with the striking off defence of the husband his written statement is taken out of consideration and the averments of the wife in the petition are considered as correct and uncontroverted and the court can proceed thereon. Relevant para 10 thereof is extracted below:- “There is another angle to look at the matter. Relevant para 10 thereof is extracted below:- “There is another angle to look at the matter. As at present, we have on the record of the case only the petition filed by the respondent-wife under Section 13 of the Hindu Marriage Act. The aforesaid petition has not been controverted, inasmuch as the written statement filed by the respondent has already been kept out of the consideration. As per the provisions contained in Section 20 (2) of the Hindu Marriage Act the statements contained in every petition under the Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of the plaints, and may, at hearing, be referred to as evidence. In this view of the matter, the petition duly verified by the respondent-wife under the provisions contained in Section 20 (2) of the Hindu Marriage Act, is also to be treated as substantive evidence. Thus, the case of the respondent-wife is fully supported by the evidence produced by her.” 12. Similar view was taken by this Court in FAO No. M-190 of 2008Meera vs Yogesh Kumar, decided on 29.4.2010. 13. Admittedly, the respondent has not paid the maintenance pendente lite and litigation expenses as ordered by this court on 25.2.2009. A period of more than fourteen months has elapsed but till date he has not paid even a single penny to the wife. He has not even filed any appeal against the aforesaid order fixing maintenance. The person who is disobeying the order of the court, cannot be allowed to be heard on merits. Since, the appellant has not complied with the order passed by this court on 25.2.2009, his defence is struck off. The guidance as to how to proceed further in such circumstances is available from the judgments referred to above. It has been consistently opined that after the striking off defence of the husband on account of non-payment of maintenance, the wife's allegations in the petition are to be taken as correct or the husband cannot be permitted to be heard on merits. Consequently, the appeal filed by the husband fails and same is dismissed as such.