Smt. Sonia vs Mr. Ajit Sihag, Advocate, for the appellant.

Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Ajit Sihag, Advocate, for the appellant. Rajesh Bindal J. Challenge in the present appeal is to the judgment and decree of the learned court below whereby petition filed by the respondent-wife under Section 12 of the Hindu Marriage Act, 1955 (for short, “the Act”) for a decree of nullity of marriage was allowed. Briefly the facts of the case are that the marriage of the parties was solemnised as per Hindu rites and ceremonies on 23.11.2005 at Village Phoolan, Tehsil and District Fatehabad. The Muklawa ceremony was performed six months after the marriage. She alleged in her petition that after the marriage when she visited the house of the appellant-husband, she found the appellant impotent. It was further averred that despite repeated opportunities, he was unable to have sexual relationship with her for which reason the marriage could not be consummated. The appellant-husband filed reply to the petition denying all the allegations levelled against him. It was averred that as the respondent wife wants to get remarried with some other person for money and her parents also demanded ` 50,000/- from him, but when he refused to fulfill their demands, the petition for declaring the marriage as nullity was filed by concocting a false story. However, his defence was struck off as he failed to pay maintenance pendente lite to the respondent wife awarded to her vide order dated 24.4.2009. The learned court below after considering the evidence led by the respondent-wife on record, allowed the petition filed by the respondent-wife for declaring the marriage a nullity vide judgment and decree dated 27.11.2009. Aggrieved against the judgment of the learned court below, the husband has filed appeal before this court. FAO No. M-66 of 2010 (2) Learned counsel for the appellant-husband submitted that the story put forth by the respondent wife is a concocted one. 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 as the appellant is a poor person and even now was not in a position to pay the maintenance amount. It was also submitted that the appellant was medically examined at Medical College, Rohtak, where he was declared fit for sexual intercourse, however, as the defence was struck off, he could not prove his case. It was submitted by him that the appellant be granted opportunity to lead evidence and instead of striking off his defence, the appeal be heard on merits. The maintenance pendente lite was fixed by the court below vide order dated 24.4.2009. A period of more than one year has elapsed but the appellant has not paid the same. The learned court below has rightly struck off the defence of the appellant on account of non-payment of amount of maintenance pendente lite and passing of decree of divorce in favour of the respondent wife. Reliance can be 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. 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 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 FAO No. M-66 of 2010 (3) 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.” Similar view was taken by this Court in FAO No. M-190 of 2008- Meera vs Yogesh Kumar, decided on 29.4.2010. Today also on asking of the court as to whether the appellant is ready FAO No. M-66 of 2010 (4) to pay the arrears of maintenance, the answer was in the negative. Admittedly, the respondent has not paid the maintenance pendente lite and litigation expenses as ordered by the court below on 24.4.2009. A period of more than one year 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 the court below on 24.4.2009, his defence has rightly been 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.

19.7.2010 ( Rajesh Bindal) Judge (Refer to Reporter)