Sunita Devi v. Satpal

Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Parminder Singh, Advocate, for the appellant. Mr. Ajit Attri, Advocate, for the respondent. Rajesh Bindal J Challenge in the present appeal is to the judgment of the learned court below whereby petition filed by the appellant-wife under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”) for dissolution of marriage by a decree of divorce on the ground of cruelty and desertion was dismissed. Briefly the facts of the case are that the marriage of the parties was solemnised as per Hindu rites in the month of June 2001 at Kurukshetra. Out of the wedlock, a male child was born on 28.6.2004. It is alleged that after some time of the marriage, the respondent started harassing and beating the appellant and treated her with cruelty. The appellant-wife filed a divorce petition. The respondent filed reply to the petition. The learned court below after considering the evidence on record, dismissed the petition filed by the applicant-wife for dissolution of marriage by a decree of divorce vide judgment dated 23.3.2010. Aggrieved against the judgment of the learned court below, the appellant-wife filed appeal before this court. Along with the appeal, the applicant-wife filed an application under Section 24 of the Act for grant of maintenance pendente lite and litigation expenses. Upon notice, the respondent-husband appeared through his counsel. The parties were directed to appear in person today vide order dated 2.8.2010. The FAO No. M-158 of 2010 2 respondent was also directed to bring a sum of ` 11,000/- towards litigation expenses to be paid to the applicant-wife. Learned counsel for the appellant submitted that as the respondent has not paid the maintenance pendente lite and litigation expenses as per order dated 9.10.2009 of the Court below and of this Court dated 2.8.2010, hence, his defence deserves to be struck of and appeal be accepted. In support of the argument, 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. While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the respondent submitted that the respondent who is present in person is ready to clear the arrears of maintenance fixed before the Court below and also seeks time to pay ` 11,000/- fixed by this Court in installments of ` 200/- and ` 300/- per month. Heard learned counsel for the parties. 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. 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 FAO No. M-158 of 2010 3 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.” 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. 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.” FAO No. M-158 of 2010 4 Admittedly, the respondent has not paid the maintenance pendente lite and litigation expenses as ordered by Court below on 9.10.2009 and the litigation expenses fixed by this Court on 2.8.2010. A period of more than ten months has elapsed but till date he has not paid single penny to the appellant-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 respondent has not complied with the order passed by Court below dated 9.10.2009 and by this court on 2.8.2010, 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 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 and the court can accept the plea of the wife. Consequently, the judgment dated 23.3.2010 is set aside and a decree of divorce is passed in favour of the appellant and against the respondent. The appeal stand disposed of. Decree sheet be prepared.

19.8.2010 ( Rajesh Bindal) Judge