Rajinder Paul vs Murti Devi

V.K. Jhanji, J.—This appeal has been directed against order dated 5.1.1989 of Additional District Judge, Bhatinda, whereby petition u/s 12 of the Hindu Marriage Act, as amended by Marriage Laws Amendment Act, 1976, has been dismissed on the ground of non-payment of arrears of maintenance pendente lite.

Appellant filed a petition u/s 12 of the Hindu Marriage Act against his wife, Murti Devi, for declaring the marriage to be a nullity. During the pendency of petition, on an application filed by the wife u/s 24 of the Hindu Marriage Act, maintenance at the rate of Rs. 125/- per month was fixed. On 5.1.1989, when the case was fixed for reconciliation, petition u/s 12 of the Act was dismissed by the learned Additional District Judge on finding that maintenance pendente lite has not been paid w.e.f. 1.11.1988.

In this appeal filed by the husband against the order of Additional District Judge, it has been contended by Counsel for the appellant that appellant has been paying Rs. 125/- per month as maintenance pendente lite from the date it was fixed and he had every intention to pay the maintenance w.e.f. 1.11.1988 also. Counsel contended that on the day, the petition u/s 12 of the Act was dismissed on the ground of non-payment of maintenance pendente lite, the case had not been fixed for payment of maintenance pendente lite, but for compromise between the parties. Counsel has contended that the order impugned in this appeal deserves to be set aside.

No one has appeared on behalf of the respondent despite service.

After hearing the Counsel and on going through the record, I am of the view that the order of Additional District Judge deserves to be set aside. Petition was dismissed on 5.1.1989 when maintenance for only two months was due. It is not the case of the respondent that appellant had not been paying maintenance, rather the ground on which petition has been dismissed is only that the respondent has not been paid maintenance for two months. No opportunity was given by the Additional District Judge to the appellant to pay maintenance pendente lite. It would have been a different matter if an opportunity in this regard had been given and appellant had failed to pay the maintenance pendente lite.

Accordingly, this appeal is allowed and the order dated 5.1.1989 of the Additional District Judge, Bhatinda, is set aside. The case is remitted to the Court of Additional District Judge, Bhatinda, with a direction to decide the same afresh on merits after issuing notice to the respondent. Counsel for appellant has undertaken on behalf of appellant that on appearance by the respondent in the Trial Court, she will be paid the entire maintenance on a date to be fixed by the Trial Court. No costs.