IMPORTANT POINT
Maintenance--Non-payment of--Striking off defence--After the striking off defence of the husband on account of non-payment of maintenance, the wife’s allegations in the petition are to be taken as correct or the husband cannot be permitted to be heard on merits and the court can accept the plea of the wife.

Mr. Rajesh Bindal J.:- Challenge in the present appeal is to the judgment of the learned court below whereby petition filed by the respondent-husband under Section 11 of the Hindu Marriage Act, 1955 (for short, “the Act”) for declaring their marriage null and void, was allowed.

2. Briefly the facts of the case are that the marriage of the parties was solemnised as per Sikh rites in the year 1998 at Goraya Tehsil Phillaur, District Jalandhar. The marriage was consummated but no child was born out of wedlock. It was alleged that after some time of the marriage, the respondent started harassing and beating the appellant and treated her with cruelty. The respondent husband is presently living in Italy. The respondent filed a petition under Section 11 of the Act. The appellant filed reply to the petition. The learned court below after considering the evidence on record, allowed the petition filed by the respondent-husband for declaring the marriage null and void vide judgment dated 8.5.2009. Aggrieved against the judgment of the learned court below, the appellant-wife filed appeal before this court.

3. During the pendency of the appeal, the wife filed application under Section 24 of the Act for grant of maintenance pendente lite. Upon notice, the application was contested by the respondent-husband. The said application was allowed by this Court vide order dated 13.5.2010, while granting ‘ 8,000/- per month as maintenance pendente lite from September 2009 onwards which was to be paid by respondent to the appellant by way of demand draft regularly at her residential address.

4. Learned counsel for the appellant submitted that as the respondent has not paid the maintenance pendente lite and litigation expenses as per order dated 13.5.2010, hence, his defence deserves to be struck of and appeal be accepted. In support of the argument, reliance was placed on Paramjit Kaur vs Kashmir Singh 1993 (3) R. R. R. 538, Balwinder Kaur vs Kashmir Singh 1993 (3) R. R. R. 539, Rani vs Parkash Singh 1996 (2) P. L. R. 219, and Ramesh vs Rajpati 2003 (3) P. L. R. 761.

5. While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the respondent submitted that inspite of his communications the respondent is not responding.

6. Heard learned counsel for the parties.

7. In Balwinder Kaur’s case (supra), this court held that once the defence of the husband is struck off on account of non-payment of litigation expenses and maintenance pendente lite, the wife is entitled to the relief prayed for in the appeal. The facts in the case in hand are also similar. In Rani’s case (supra), this court allowed appeal filed by wife against decree of divorce after the defence of the husband was struck off on account of non-payment of maintenance as fixed under section 24 of the Act. Relevant para 7 of the judgment is extracted below:-

“No doubt, wife can file a petition under Order 21 Rule 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 Section 24 of the Act empowers the matrimonial Court to make an order for maintenance pendente lite and 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 Section 13 of the Act. In a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram, 1975 H.L.R. 15; Gurdev Kaur v. Dalip Singh, 1980 H.L.R. 240; Smt. Surin