Punjab-Haryana High Court
Krishan Kumar vs Monika Grover on 6 April, 2011
Author: Rajesh Bindal
Bench: Rajesh Bindal
FAO No. M-266 of 2009 (1)
In the High Court of Punjab & Haryana at Chandigarh
FAO No. M-266 of 2009 (O&M)
Date of decision : 6.4.2011
Krishan Kumar ..... Appellant
vs
Monika Grover ..... Respondent
Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Munish Puri, Advocate for
Mr. Hemant Saini, Advocate, for the appellant.
Mrs. Harveen Kaur, 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 appellant-husband under Section 13 of the Hindu Marriage Act, 1955 (for short, "the Act") for divorce, was dismissed Briefly the facts of the case are that the marriage of the parties was solemnised as per Hindu rites on 9.3.2000 at Sirhind Mandi, District Fatehgarh Sahib. After the marriage, the parties resided at their matrimonial home. The marriage was consummated and one male child was born out of the wedlock, who is presently residing with the mother. It was alleged that after some time of the marriage, the respondent started treating the appellant with cruelty. She always used to abuse him and his family members. She always refused to prepare the meals. With the aforesaid allegations, the petition seeking divorce was filed.
The respondent filed reply to the petition denying all the allegations levelled against her and stated that as her parents could not fulfill his dowry demands, he has filed this petition by concocting a false story.
FAO No. M-266 of 2009 (2) The learned court below after considering the evidence on record, dismissed the petition filed by the appellant-husband for divorce vide judgment dated 9.6.2009. Aggrieved against the judgment of the learned court below, the husband has filed appeal before this court.
During the pendency of the appeal, the wife filed Civil Misc. No. M-170 of 2009 under Section 24 of the Act for grant of maintenance pendente lite, as also the litigation expenses. Upon notice, the application was contested by the husband. The said application was allowed by this Court vide order dated 3.2.2010, granting ` 5,000/- per month as maintenance pendente lite.
Learned counsel for the respondent submitted that more than one year has elapsed but the appellant has not paid the maintenance pendente lite as per order dated 3.2.2010. It was also submitted that the appellant has also not paid the costs imposed by this court on the earlier dates. She has prayed for striking off defence of the appellant on account of non-payment of amount of maintenance pendente lite and dismissal of appeal in her favour. 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 appellant-husband submitted that she had never treated him as her husband. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. The appellant is present in court. He has handed over a demand draft of ` 10,000/- dated 6.4.2011 drawn on State Bank of Patiala, Sirhind Mandi, in favour of Monica Grover to the counsel for the respondent. On the asking of the court for the arrears of maintenance and the costs imposed by this court on the earlier dates, he stated that he is not in a position to pay the same. The fact that order passed by this court fixing maintenance was not challenged by the appellant any further and the same attained finality. However, he submitted that the evidence led by the appellant before the trial court be considered and instead of striking off defence of the appellant, the appeal be heard on merits.
FAO No. M-266 of 2009 (3) Heard learned counsel for the parties.
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 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. FAO No. M-266 of 2009 (4) 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.
FAO No. M-266 of 2009 (5) Admittedly, the appellant has not paid the maintenance pendente lite as ordered by this court on 3.2.2010. 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 orders of the court, cannot be allowed to be heard on merits. Since, the appellant has not complied with the order passed by this court on 3.2.2010, 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 husband fails and same is dismissed as such.
6.4.2011 (Rajesh Bindal) vs Judge