Santosh vs Balwinder Kumar

Sarojnei Saksena, J.—Appellant-wife has filed this appeal against trial Court''s order dated September 13, 1993, whereby her petition Filed u/s 13 of the Hindu Marriage Act, 1965 (in short ''the Act) was dismissed.

In the lower Court the appellant''s contention was that she was married to the respondent on December 4, 1988. They lived together till June 3, 1991. During this period of her stay in the matrimonial home she was always tortured and treated with cruelty. The respondent and his family members always demanded money on the count that in her marriage insufficient dowry was given. She was compelled to bring sometimes Rs. 800/ sometimes Rs. 5000/- from her parents. As she declined she was mercilessly beaten and finally on June 3, 1991, she was turned out of the matrimonial home. Her Stridhan was also retained by the respondent declined to rehabilitate her. Since then she is residing in her parental home. She sought divorce on the ground of cruelty.

The respondent-husband in his reply denied the allegation of cruelty. He alleged that the wife left the matrimonial home without any sufficient cause or reason and declined to come back to the matrimonial fold. She also filed a false criminal case against him Under sections 498-A/406 IPC. He denied that her Stridhan was retained by him.

On these pleadings, issues were framed. Parties adduced their evidence. The Trial Court vide impugned judgment held that the appellant-wife has failed to prove the ground of divorce. Hence her petition was dismissed.

The appellant-wife filed this appeal. She filed a petition u/s 24 of the Act claiming Rs. 2,500/- as litigation expenses and Rs. 600/- per month as maintenance, It was contested by the respondent. Vide order dated March 22,1994, this petition was decided. The Division Bench ordered that the respondent should pay Rs. 2,000/- as litigation expenses and Rs. 250/- per month as maintenance pendente lite. Despite this order the respondent failed to pay the maintenance and the litigation expenses. Vide order dated September 6, 1994, respondent''s defence is struck off as he failed to pay maintenance allowance.

Appellant''s counsel relyine on Smt. Swaruo Devi v. Piara Ram 1975 HLR 15 and Kanti Devi v. Balbir Singh 1990(1) CLJ 86 contended that as respondent''s defence is struck off, appellant''s appeal should be allowed.

In Smt. Swamo Devi''s case (supra), Gurdev Kaur v. Dalip Singh 1980 H.L.R. 240, Sumarti Devi v. Jai Parkash 1985(1) H.L.R. 84 and Kanti Devi''s case (supra) the consequence of such a situation is considered. When the husband falls to pay the maintenance allowance to the wife, the legal consequence is that his defence is struck off. In this case respondent''s defence stands struck off. Appellant wife sought divorce on the ground of cruelty. In the trial Court the husband respondent filed this reply, denying the ground of cruelty and alleging that the wife appellant had left the matrimonial home without any sufficient cause or reason. His this defence cannot be considered now. The consequence is that not only the appeal but even her petition filed u/s 13 of the Act is to be allowed. Accordingly, the appeal is allowed with no order as to costs. Appellant wife''s petition filed u/s 13 of the Act also stands allowed. A decree of divorce is granted in favour of the appellant-wife against the respondent-husband. Decree be drawn within three days. Thereafter copy of the decree be given to the appellant-wife free of costs.