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 (1) (i-a) 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 4.12.1998 at village Kulana-Ki-Dhani. 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 started harassing and beating the appellant and treated her with cruelty. The appellant filed a 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 15.11.2008. 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, as also the litigation expenses. Upon notice, the application was contested by the respondent-husband. The said application was allowed by this Court vide order dated 18.1.2010, while granting Rs. 1,200/- per month as maintenance pendente lite from the date of filing of application and Rs. 4,000/- as litigation expenses.

4. Learned counsel for the appellant submitted that the respondent has not paid the maintenance pendente lite and litigation expenses as per order dated 18.1.2010. The parties were also directed to appear before Medication and Reconciliation Centre but they did not appear. Twice the matter was adjourned for appearance of respondent and payment of maintenance but the respondent did not come present. Today also the respondent has not come. It was also made clear to counsel for the respondent vide order dated 21.4.2010 that in case the compliance is not made law will take its own course. The submission was that in the circumstances the defence of the respondent is liable to be struck off and after accepting all the allegations made by the appellant in the petition, the divorce petition deserves to be allowed.

5. 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.

6. While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the respondent-husband submitted that as 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. However, he submitted that he had informed the respondent about the order passed by this Court regarding his presence in the Court and also regarding payment of arrears of maintenance but he has not responded. Considering his helplessness he submitted that this Court may proceed further.

7. Heard learned counsel for the parties and perused the paper book.

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