Kiran Bala Bangar vs Vijay Kumar Bangar

Rajesh Bindal, J.—Challenge in the present appeal is to the judgment of the learned court below whereby petition filed by the respondent-

husband u/s 13 of the Hindu Marriage Act, 1955 (for short, ""the Act"") for divorce, was allowed.

Briefly the facts of the case are that the marriage of the parties was solemnised as per Hindu rites on 13.2.2000 at Ludhiana. After the marriage,

the parties resided in their matrimonial home. Out of their wedlock one male child was born on 13.12.2000, who is living with the appellant wife.

Due to temperamental differences, the parties could not pull on together. The petition filed by the husband for dissolution of marriage was

contested by the wife by filing reply denying all the allegations leveled by him.

The learned court below after considering the evidence on record, allowed the petition filed by the husband and granted a decree of divorce

vide judgment dated 15.2.2008. Aggrieved against the judgment of the learned court below, the wife has filed appeal before this court.

Along with the appeal, the wife filed Civil Misc. No.M-28 of 2008 u/s 24 of the Act for grant of maintenance pendente lite. Upon notice, the

application was contested by the husband. The said application was allowed by this Court vide order dated 3.7.2009 and the wife was granted

Rs. 10,000/- per month as maintenance pendente lite from the date of application and Rs. 11,000/- as litigation expenses.

Learned counsel for the appellant submitted that the respondent is living abroad and leading a luxurious life. The wife has no source of livelihood.

She has to maintain her son also. But the respondent has not paid maintenance pendente lite as per order dated 3.7.2009.

On 28.1.2011, this court on the request of counsel for the respondent granted last opportunity for clearance of the arrears of maintenance and

the case was adjourned to 22.2.2011. On the adjourned date no maintenance was paid and the case was adjourned for today on the request of

counsel for the respondent, by passing the following order:

This court vide order dated 3.7.2009 had fixed maintenance of Rs. 10,000/- per month payable to the applicant wife from the date of application

i.e. 11.3.2008. In addition, a sum of Rs. 11,000/- was also awarded as litigation expenses. The first payment of Rs. 2,50,000/- was made by the

non-applicant on 26.3.2010 after the wife filed application seeking payment of arrears of maintenance. On account of delay, cost of Rs. 10.000/-

was also imposed on 22.2.2010. Even after March 2010, no payment was made by the non-applicant husband.

The present application has been filed by the wife seeking clearance of arrears of maintenance in which notice was issued on 13.9.2010.

Thereafter, the same was adjourned on the request of counsel for the non-applicant, thrice. However, payment has not been made till date.

Learned counsel for the non-applicant/husband submitted that now she has not been able to contact the attorney of the non-applicant, who is living

abroad. She submitted that arrears of maintenance shall be cleared within one week.

As a matter of indulgence one week adjournment is granted to clear the arrears of maintenance. However, the same shall be subject to payment of

Rs. 25,000/- is costs. Adjourned to 1.3.2011.

Today again learned counsel for the respondent submitted that neither the husband nor his attorney is responding to clear the arrears of

maintenance.

Learned counsel for the appellant submitted that since the respondent is not paying any maintenance and disobeying the order of this court, his

defence be struck off on account of non-payment of amount of maintenance pendente lite and appeal filed by the wife may be allowed. In support

thereof, reliance was placed on Paramjit Kaur v. Kashmir Singh 1993 (3) R.R.R. 538; Balwinder Kaur v. Kashmir Singh 1993 (3) R.R.R. 539 ;

Bani Vs. Parkash Singh, and Ramesh Vs. Rajpati, .

While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the husband submitted that she had treated

the respondent with cruelty. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. It was submitted ''that

the evidence led by the respondent before the trial court be considered and instead of striking off his defence, the appeal be heard on merits as the

arrears can be recovered by selling his property.

Heard learned counsel for the parties and perused the relevant referred record.

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 u/s 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 u/s 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 u/s 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 u/s 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 v. Yogesh Kumardecided on 29.4.2010.

Admittedly, the respondent has not paid the maintenance pendente lite as ordered by this court on 3.7.2009. A period of more than one year

has elapsed but till date he has not paid even a single penny to the wife. Earlier also the payment was made by the husband after the wife filed

application seeking payment of arrears of maintenance. Now again the wife has filed application for payment of arrears of maintenance, but he has

not paid the 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 this court on 3.7.2009, 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 wife is allowed. The judgment and decree of the learned court below is set aside. The petition of the

husband for grant of decree of divorce is dismissed.

Decree sheet be prepared.