(August 7, 2001) 2001 (TLS)125377

2001-DLT-93-545 :: 2001-AD (Del)-6-563

SATISH KUMAR Vs. Meena

MUKUL MUDGAL

( 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 a sum of Rs. 3000/~ towards costs of litigation and Rs. 1500/- p. m. towards maintenance pendente life to the petitioner Respondent) from the date of her application. The said orders were not complied with by the respondent. Hence, his defence 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 favour by the Trial Court. Incidentally the defence of the appellant was also struck off on 13th of October, 2000 for failure to pay the maintenance.

( 4 ) THE fact that the defence of the appellant stood struck off in the Trial Court shows that he has no defence to the respondent s claim and can only seek to demolish the respondent s case-by cross-examination. The appellant has not shown that the Order dated 30. 10. 2000, directing the defence of the appellant to be struck off was ever set aside 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 (Pandh) and Smt. Parkasho Vs Lachman Singh 1977 hlr 334 (P and H) to contend that the defence can be struck off for failure to pay the maintenance. He has also relied upon the judgments in Bani Vs Parkash Singh AIR 1996 Pandh 175 and Ghasiram Das Vs Smt. Arundhati Das and Another 1994 (1) HLR 545 (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 defence for non-compliance of orders for payment of maintenance underlying the above Judgements are to be found in Para 7 of Barn. Vs Prakash Singh (Supra) which reads as under;

"no doubt, wife can file a petition under O. 21, R. 37, Civil Procedure Code 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 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 S. 13 of the Act. In a plethora of decisions of this Court Smt. Swarno devi Vs Piara Raro, 1975 Hindu LR 15 gurdev/kaur v. Dalip Singh, 1980 Hin