Punjab-Haryana High Court
Smt. Suman vs Ajit Singh on 17 January, 2011
Author: Rajesh Bindal
Bench: Rajesh Bindal
FAO No. 209-M of 2006 ( 1)
In the High Court of Punjab & Haryana at Chandigarh
CM No. 3851/CII of 2010 and
FAO No. 209-M of 2006 (O&M)
Date of decision : 17.1.2011
Smt. Suman ..... Appellant
vs
Ajit Singh ..... Respondent
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Rakesh Nehra, Advocate, for the applicant-appellant.
Mr. S. P. Chahar, 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 respondent-husband under Section 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 16.3.1994 at Village Jatuwas, Tehsil and District Mahendergarh. After the marriage, the parties resided at their matrimonial home. Out of their wedlock one female child was born. Appellant's sister Savitri was also married in the same family with Pawan, brother of the respondent-husband. It was alleged by the respondent in his petition for divorce before the court below that after some time of the marriage, the appellant started misbehaving with him and his family members. She left the matrimonial at her own. It was also alleged by the respondent that his brother Pawan died as a result of consumption of excessive liquor in the marriage of his cousin but the appellant wife and his sister Savitri lodged a false case against the respondent, his sister and parents after a period of six months. The respondent tried to bring her to the matrimonial home but all in vain. Thereafter, he filed petition seeking divorce.
The wife filed reply to the petition denying all the allegations levelled by the respondent. It was averred that she has not left the matrimonial home rather she was turned out in March 2000. It was alleged that the petition has been filed by concocting a false story.
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 15.6.2006. Aggrieved against the judgment of the learned court below, the wife has filed appeal before this court.
FAO No. 209-M of 2006 ( 2) Along with the appeal, the wife filed Civil Misc. No. M-118 of 2006 under Section 24 of the Act for grant of maintenance pendente lite. Upon notice, the application was contested by the husband. While admitting the appeal, the said application was allowed by this Court vide order dated 4.12.2007 and the wife was granted ` 1,500/- per month as maintenance pendente lite from the date of application.
Learned counsel for the applicant-appellant submitted that a period of more than three years has elapsed but the respondent has not paid even a single penny on account of maintenance pendente lite as per order dated 4.12.2007. She has filed Civil Misc. No. 3851/CII of 2010 with a prayer that defence of the respondent be struck off on account of non-payment of amount of maintenance pendente lite and appeal filed by her may be allowed. In support thereof, 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 husband submitted that she had never treated the respondent as her husband. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. It was submitted that the respondent is not in a position to pay any maintenance as he is not doing anything. On an execution application filed by the wife for recovery of maintenance amount, as fixed in proceedings under Section 125 Cr. P. C., warrant of attachment has been issued. 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 from the sale of attached 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 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 FAO No. 209-M of 2006 ( 3) 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 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 FAO No. 209-M of 2006 ( 4) 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.
Admittedly, the respondent has not paid the maintenance pendente lite as ordered by this court on 4.12.2007. A period of more than three years 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 respondent has not complied with the order passed by this court on 4.12.2007, 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 application filed by the wife for striking off defence of the applicant is allowed and 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.
17.1.2011 (Rajesh Bindal) vs Judge