Punjab-Haryana High Court
Subhash vs Sheela Devi on 9 May, 2006
Equivalent citations: AIR2007P&H68, (2007)146PLR770, AIR 2007 PUNJAB AND HARYANA 68, 2007 (2) AJHAR (NOC) 665 (P&H), 2007 (3) AKAR (NOC) 304 (P&H), 2007 A I H C (NOC) 308 (P&H), (2007) 3 ALLMR 3 (P&H), (2007) 1 HINDULR 194, (2007) 1 MARRILJ 561, (2007) 1 MARRILJ 20, (2007) 2 PUN LR 770, (2007) 1 RECCIVR 165, (2007) 2 ICC 181
Author: Nirmal Yadav
Bench: Nirmal Yadav
JUDGMENT Nirmal Yadav, J.
1. This is husband's appeal against the judgment and decree dated 20-2-2003 passed by Additional District Judge, Sirsa vide which his petition under Section 13(1) of the Hindu Marriage Act, 1955 (in short 'the Act') for dissolution of marriage by way of divorce has been dismissed.
2. The marriage between the parties was solemnised on 19-2-1997. Out of the wedlock, one male child was born on 2-8-1998. According to husband, the conduct of the respondent-wife was arrogant right from the day of marriage. A number of times, she insulted the appellant as well as his parents. She did not even allow to take their child in his lap on the pretext that appellant was suffering from tuberculosis. On one occasion she even described the appellant as eunuch. About 3 years before filing the petition, the respondent-wife left the matrimonial home along with their son and went to her parents house. In spite of the best efforts she did not join the appellant and deserted him without any reasonable and sufficient cause. The petition was contested by the respondent-wife denying the averments made in the petition. She denied having treated the appellant with cruelty or having deserted him. Rather, her stand was that the husband and his family members were not satisfied with the dowry given by her parents. They made various demands, but her parents were not in a position to meet their demands and as such, differences developed between the parties. The respondent-wife pleaded that appellant is a person of very short temperament and she was turned out of the matrimonial home by her husband himself. She further pleaded that before filing the divorce petition, the husband had filed a petition for restitution of conjugal rights, but the same was withdrawn by him and it was nowhere mentioned in the order passed by the Court that respondent-wife had refused to join the company of her husband.
3. The trial Court after taking into consideration the evidence produced by both the parties, came to the conclusion that husband has failed to prove the ground of cruelly as well as desertion. The wife had always been ready to reside with the husband without any condition. On the other hand, the husband categorically stated in his cross-examination that he is not ready to take the respondent-wife with him from the Court complex. As such, the trial Court dismissed the petition filed by the appellant-husband.
4. Aggrieved by the judgment and decree passed by the trial Court, the husband has filed the present appeal. During the pendency of the appeal, on the application moved by the respondent-wife, this Court vide order dated 16-5-2005, directed the appellant to pay interim maintenance at the rate of Rs. 1800/- per month from the date of application i.e. 21-2-2005, which was being paid by him during the course of proceedings in the trial Court. However, during the pendency of this appeal the matter was adjourned on a number of occasions, but the appellant did not pay the maintenance pendente lite. On 17-1-2006, this Court directed the husband to make payment of Rs. 10,000/- by way of bank draft. On the last date of hearing i.e. 18 4-2006, learned Counsel for the appellant stated that the appellant is not in a position to make the payment. Even today, learned Counsel for the appellant categorically stated that appellant will not pay the arrears of maintenance. The appellant is not present in Court today. Learned Counsel for the respondent-wife stated that in spite of the order of this Court for making payment of maintenance, no amount on account of maintenance pendente lite and litigation expenses, has been paid to the respondent-wife. She, therefore, argued that appeal filed by the appellant is liable to be dismissed on account of his failure to comply with the order to pay maintenance pendente lite. In support, learned Counsel for the respondent relied on a judgment of the Apex Court in Hirachand Srinivas Managaonkar v. Sunanda . It is argued that non-payment of maintenance allowance by the appellant-husband constitutes a wrong under Section 23 of the Act, therefore, he is not entitled to any relief and appeal is liable to be dismissed. She also relied on a couple of judgments of this Court in Bani v. Parkash Singh AIR 1996 Punjab & Haryana 175 and Amrit Pal Kaur v. Roshan Lal 2004 (1) marriage Law Journal 38.
5. I find force in the contention raised by the learned Counsel for the respondent-wife that non-payment of maintenance pendente lite amounts to committing wrong under Section 23 of the Act and, therefore, the appellant-husband is not entitled to decree of divorce on this ground alone. The Apex Court in Hira chand's case (supra) has categorically held that refusal to pay maintenance by the husband to the wife, as ordered by the Court, amounts to committing a wrong within the meaning of Section 23 of the Act and trial Court was held to be justified in declining the prayer of the husband for dissolution of marriage. It was further held that while considering the matter regarding divorce between the parties, non-payment of maintenance allowance is one of the relevant consideration. Even otherwise, the appellant-husband in his cross-examination himself stated that he was not ready to keep the respondent-wife with him.
6. Accordingly, the judgment and decree passed by the trial Court is upheld and appeal stands dismissed.