Order regarding defence struck off if maintainable.

C.M.A.No.1192 of 1993: This is an appeal filed by the respondent in F.C.O.P.No.757 of 1991 on the file of Family Court, Madras, against an order made on 28. 1993 by the Principal Judge. The original petition was filed by the respondent herein for restitution of conjugal rights. It is not necessary to set out the allegations made in the original petition for the purpose of this appeal. The appellant is contesting the said petition, after filing a counter statement. The respondent filed I.A.No.578 of 1992 for grant of interim maintenance at the rate of Rs. 1,500 p.m. till the disposal of the main original petition and also for Rs.3,000 by way of legal expenses to conduct the original petition. The appellant filed a counter affidavit in that petition. When that petition was pending, the respondent filed a memo on 33. 1993. According to the memo, no documentary proof was available to the respondent to prove the properties owned by the appellant. A request is made in the memo to treat the interlocutory application as main original petition and dispose of the same, without proof of documentary evidence. Another memo was filed on 3. 1993, by the respondent, in which some details of the properties owned by the respondent’s parents are mentioned. To that, a reply memo was filed by the appellant on 6. 1993. The appellant has stated that he was working as an accountant at Holy Redeemer’s Finance Corporation honorarily and received no salary or wages. The Principal Judge passed an order in the interlocutory application on 17. 1993, directing the appellant to pay a sum of Rs.500 by way of maintenance, from the date of the application, namely, 18. 1992, till the disposal of the original petition, plus a sum of Rs.1,500 by way of legal expenses. He calculated the total amount at Rs.8,100 and directed the appellant to pay the sum on or before 8. 1993. He posted the original petition to 8. 1993 for payment of arrears of maintenance.

2. On 8. 1993, according to the order of the learned Judge, the appellant was absent and as he did not pay the interim maintenance or litigation expenses, as ordered by court, his defence was struck off. Referring to the factum of striking off defence, the learned Judge proceeded to dispose of the main original petition. The respondent was examined as P.W.I. Relying on the evidence given by the respondent, the learned Judge granted a decree for restitution of conjugal rights under Sec.32 of the Indian Divorce Act. Thus, the original petition was allotted. Aggrieved by the same, the appeal has been preferred by the appellant who is the husband.

3. We have no hesitation to hold that the order of the learned Judge striking off the defence of the appellant herein on 8. 1993 is wholly unsustainable. No doubt, an order directing payment of maintenance was made by the learned judge on 17. 1993, but that order did not contain a default clause that, in the event of non-payment of maintenance, the defence of the appellant might be struck off. In the absence of such a clause in the order, the learned Judge erroneously struck off the defence which he is not entitled in law. Even if there had been such a clause, the court should consider whether on the facts, the defence should be struck off.

4. The question has been considered in detail in Mahalingam Pillai v. Amsavalli, (1956)2 M.L.J. 289, where a learned Judge of this Court, after referring to the English Law and American Law and the position under the various Divorce Acts including the Indian Divorce Act, said:

"In India the Divorce Act, 1869, is silent as to mode of enforcement of decrees and orders for payment of alimony pendente lite and must therefore be enforced according to the provisions of the Code of Civil Procedure for the execution of decrees. It cannot be enforced by strict proceedings in contempt. White v. White, Contra Leadis v. Leadis. But under the Indian Divorce Act, by reason of Sec.7 which makes the reliefs to be granted as conformable to th