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2005 Supreme(HP) 430
High Court Of Himachal Pradesh
DEEPAK GUPTA
RAMAN KUMAR - Appellant
Versus
UMA KIRAN - Respondent
F. A. O. No. 186 of 2005
Decided On : 12/05/2005
Tara Singh Chauhan, for Appellant; Dinesh Sharma, for Respondent.
Before striking off a party's defense for non-payment of maintenance, the offending party must be given a reasonable opportunity to make amends and pay the arrears.
Headnote:
Maintenance - Hindu Marriage Act - Section 24
Fact of the Case:
The wife filed a petition for divorce on the grounds of cruelty and desertion. The husband's defense was struck off for non-payment of arrears of alimony, and he was prevented from cross-examining the witnesses. The trial court granted a decree of divorce in favor of the wife without affording the husband an opportunity to pay the arrears of maintenance.
Finding of the Court:
The court found that the trial court had acted hastily in striking off the husband's defense and not affording him an opportunity to pay the arrears of maintenance. The judgment and decree of divorce were set aside, and the case was remanded back to the trial court.
Issues: The main issue was whether the trial court's decision to strike off the husband's defense and grant a decree of divorce in favor of the wife without affording the husband an opportunity to pay the arrears of maintenance was justified.
Ratio Decidendi: The court held that before striking off a party's defense for non-payment of maintenance, the offending party must be given a reasonable opportunity to make amends and pay the arrears. Striking off the defense should only be used as a last resort when all other means fail.
Final Decision: The appeal was allowed, and the case was remanded back to the trial court. The husband was permitted to cross-examine the witnesses, and the case was to proceed from the stage of recording the petitioner's evidence. The husband was directed to pay the remaining amount of maintenance before cross-examining the witnesses.
1. Mr. Tara Singh Chauhan learned counsel for the husband submits that Rs. 15,000/- has been deposited in terms of the order dated 24-10-2005.
2. Learned counsel for the parties have agreed that instead of formally admitting the matter, it may be heard and decided at this stage itself.
3. The present appeal has been filed by the appellant-husband. The wife-respondent filed a petition for grant of divorce before the trial Court on the ground that her husband is treating her with cruelty and also deserted her. This petition was allowed after striking off the defence of the husband on account of non-payment of arrears of alimony.
4. During the pendency of the proceedings, the respondent-wife also filed an application for grant of interim maintenance which was allowed vide order dated 21-9-2004 and maintenance of Rs. 800/- per month along with litigation expenses amounting to Rs. 2000/- was awarded in favour of the wife. Thereafter the case was fixed for 13-4-2005 for evidence of the respondent-wife. The witnesses were present and examined in chief. When they were to be cross-examined, the counsel for the respondent-wife objected that the respondent-husband could not be permitted to cross-examine the witnesses since the husband had not deposited the arrears of maintenance awarded to wife under Section 24 of the Hindu Marriage Act. The counsel for the husband immediately offered to deposit a sum of Rs. 5000/- out of the amount of Rs. 13000/- approximately due at that time.
5. The learned trial Court did not accept this offer and only on the ground that the husband had not paid the arrears of maintenance pendente lite did not permit him to cross-examine the petitioner-wifes witnesses. His evidence was closed for the same reason on 13-4-2005 itself and on the same date arguments were heard and the impugned judgement and decree of divorce in favour of the wife was passed.
6. Mr. Tara Singh Chauhan learned counsel for the appellant-husband urges that the mere fact that the husband was unable to pay the arrears of maintenance pendente lite was not a ground to close his defence and that too without affording any opportunity to him to pay the arrears of maintenance.
7. On the other hand, Mr. Dinesh Sharma learned counsel for the wife-respondent relies upon the judgement of this Court in Jai Singh v. Smt. Khimi Bhiklu and another, AIR 1978 HP 45, wherein this Court held that the trial Court can invoke its inherent powers under Section 151 CPC and close the defence of the delinquent spouse who despite an order directing him to deposit the maintenance pendente lite deliberately and contumaciously flouts the said order.
8. I am afraid this judgement cannot be applied to the facts of the present case. In Jai Singhs case (AIR 1978 HP 45), the husband had taken a number of opportunities to pay the arrears. In fact, the wife undertook to produce all her evidence on 17-3-1973 in case the husband paid her Rs. 200/- by 2-3-1973. On 17-3-1973, the husband flatly refused to pay the amount and in such circumstances the defence of the husband was struck off. The facts of the present case are totally different. In the present case the evidence of the respondent-wife was present but the appellant-husband was prevented from cross-examining the said witnesses. His evidence was closed on the same date and the case was also decided on the same date and a decree of divorce was granted to the wife without affording any opportunity to the husband.
9. Even if the husband had not obeyed the orders of the Court and had not deposited the arrears of interim alimony, then also before taking a drastic measure of striking off the evidence, he should have been given a reasonable opportunity to pay the arrears of pendente lite. The proper courses would have been to permit the wife to lead her evidence and Court could have directed the husband to pay some portion of the arrears of maintenance and on payment of such amount he could have been permitted him to cross-examine
