IMPORTANT POINT
Striking off defence--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.

Mr. Rajesh Bindal J.:- Challenge in the present appeal is to the judgment of the learned court below whereby petition filed by the appellant-wife under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”) for divorce, on the ground of cruelty, was dismissed.

2. Briefly the facts of the case are that the marriage of the parties was solemnised as per Hindu rites on 29.3.2007 at village Bhuna, District Fatehabad. After the marriage, the parties resided at their matrimonial home at Litani, Tehsil Uklana, District Hisar. The marriage was consummated but no child was born out of the wedlock. It was alleged that after some time of the marriage, the respondent and his family members started harassing and beating the appellant on account of bringing less dowry. The same resulted into filing of petition for divorce. The respondent filed reply to the petition. The learned court below after considering the evidence on record, dismissed the petition filed by the appellant-wife for divorce vide judgment dated 12.3.2010. Aggrieved against the judgment of the learned court below, the appellant-wife filed appeal before this court.

3. Notice of motion was issued on 16.7.2010. The respondent-husband had put in appearance on 7.9.2010. The parties were directed to appear in person in court on 27.9.2010. The respondent was also directed to pay a sum of ‘ 11,000/- to the appellant wife on account of litigation expenses. On 27.9.2010, the appellant wife was present but the case was adjourned to 7.10.2010 on the request of counsel for the respondent as the respondent failed to appear and pay the litigation expenses fixed by this court. The respondent was granted adjournment subject to payment of ‘ 1,000/- as cost to the wife.

4. Today when the case was taken up for hearing neither the respondent appeared nor he has paid the costs as well as the litigation expenses fixed by this court on the earlier dates of hearing.

5. Learned counsel for the appellant submitted that inspite of grant of 3 adjournments, the respondent has not paid the litigation expenses and cost imposed by this court on the earlier dates of hearing to the appellant wife. It was prayed that considering the conduct of the respondent, defence of the respondent be struck off on account of non-payment of amount of litigation expenses as well as the costs. In support thereof, 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.

6. Learned counsel for the respondent-husband submitted that the respondent never treated her wife with cruelty, the trial court after considering the evidence on record rightly dismissed her petition for divorce. It was prayed that instead of striking off defence of the respondent, the appeal be heard on merits. Today also opportunity was given to the respondent to pay the costs as well as the litigation expenses fixed by this court on the earlier dates of hearing, but learned counsel for the respondent submitted that the husband-respondent is not in a position to pay the same.

7. Heard learned counsel for the parties.

8. 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.

9. 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