Delhi High Court
Shri Satish Kumar vs Meena on 7 August, 2001
Equivalent citations: II(2001)DMC732, 2001(60)DRJ246
Author: Mukul Mudgal
Bench: Mukul Mudgal
ORDER Mukul Mudgal, J.
1. This is an appeal against the Order dated 9th of December, 2000, passed by the Learned Additional District Judge, Delhi, dissolving the marriage of the respondent/wife with the appellant/husband on the ground of cruelty.
2. The Order under appeal also inter-alia directed in Para No.7 as follows:
"On an application under Section 24 of the Hindu Marriage Act, 1955 (in short the Act), it was ordered that the respondent(the appellant)shall pay sum of Rs. 2000/- towards costs of litigation and Rs.1500/- p.m. towards maintenance pendent lite to the petitioner(Respondent)from the date of her application. The said orders were not complied with by the respondent. Hence, his defense was struck off vide order dated 30.10/2000. However, he was permitted to demolish the case of the petitioner by way of cross-examining her."
3. Learned counsel for the respondent submits that the appellant herein while impugning the impugned Order of dissolution has not paid any maintenance to the respondent since the time the order of maintenance was passed in her favor by the Trial Court. Incidentally the defense of the appellant was also struck off on 13th October, 2000 for failure to pay the maintenance.
4. The fact that the defense of the appellant stood struck off in the Trial Court shows that he has no defense to the respondent's claim and can only seek to demolish the respondent's case by cross-examination. The appellants has not shown that the Order dated 30.10.2000, directing the defense of the appellant to be struck off was ever set advise by any superior Court.
5. The learned counsel for the respondent has relied upon the judgments in Smt. Swarno Devi Vs Shri Piara Ram 1975 HLR 15 (P&H) and Smt. Parkasho Vs Lachman Singh 1977 HLR 334 (P & H) to contend that the defense can be struck off for failure to pay the maintenance. He has also relied upon the judgments in Bani Vs Parkash Singh and Ghasiram Das Vs Smt. Arundhati Das & Another 1994 (1) HLR (Orissa) to contend that even the appeal can be dismissed for non-payment of maintenance. The appellant was asked by this Court through his counsel and himself even today whether he is in a position to pay the maintenance and whether he wants further extension of time to make the payment of maintenance and even a fraction of maintenance. The appellant has refused to commit himself and has declined to make any payment. The appellant also could not amicably settle the whole dispute even though opportunity was granted on 17.5.2001 to the parties for this purpose. On merits I find that the principles for striking out defense for non-compliance of orders for payment of maintenance underlying the above judgments are to be found in Para 7 of Bani Vs Prakash Singh (Supra) which reads as under:
"No doubt, wife can file a petition under 0.21,R.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 S.24 of the Act empowers the matrimonial Court to make an order 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 Realizing this amount. The conduct of the respondent-husband amounts to contumacy. Law is not that powerless as to not to bring the busband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defense can be struck out. No doubt, in this appeal he is respondent. His defense is contained in his petition filed under S. 13 of the Act. In a plethora of decisions of this Court Smt. Swarno Devi Vs Piara Ram, 1975 Hindu LR 15; Gurdev Kaur v. Dalip Sigh, 1980 Hindu LR 240; Smt. Surinder Kaur v. Baldev Singh, 1980 Hindu LR 514; Sheela Devi v. Madan Lal 1981 Hindu LR 126 and Sumarti Devi v. Jai Prakash, 1985 (1) Hindu LR 84, it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defense is to be struck out. The consequence is that the appeal is to be allowed and his petition under S. 13 of the Act is to be dismissed."
Similarly, in Ghasiram Das (Supra) it is held as follows:
"It is no doubt correct that the order directing payment of interim maintance can be enforced by taking recourse to an execution proceeding, but the aforesaid provision enabling the party to file an execution proceeding does not preclude the court to enforce its own order in order to prevent abuse of the process of Court. An indigent spouse who is financially handicapped to placed materials before the court and to fight out the litigation in which the order was passed cannot be expected to initiate another legal proceeding and realise her dues.
.....The next alternative by which the Courts may enforce the order is to strick out the pleading of the defaulting party. Whether it will be permissible in law for taking such a course requires consideration. The Delhi High Court in a decision Smt. Anuradha v. Santosh Nath hanna has observed that it is open to the court of enforce obedience of its order or to prevent abuse of its process by staying the proceedings or striding off the defense or by temporarily suspending its operation without prejudice to any other action that may be taken according to law. The phrase "striding off the defense". would be applicable where the defendant is the defaulting party and where the plaintiff is the defaulter it naturally follows that his pleading can also be struck down for non-compliance of the order."
Thus the Orissa High Court has applied the position of law laid down by the decisions relied upon by the respondent to hold that even the pleadings of a plaintiff can be struck off for non-compliance. Since I am in respectful agreement with the view of Orissa High Court, I see no difficulty in extending the analogy of striking off plaintiff's pleading to even an appeal. Consequently the appeal is liable to be dismissed in view of non-payment of maintenance to the respondent/wife.
6. In this view of the matter, the appellant not having paid the maintenance, the appeal is dismissed with no order s as to costs.