Non-payment of maintenance pendente lite can result in the striking off of the husband's defense and a favorable decision for the wife in a divorce petition.

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 7.6.2002 at Panipat. After the marriage, the parties resided at their matrimonial home at Delhi. 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 on account of bringing less dowry. She lodged FIR No. 130 dated 14.3.2006 under Sections 498-A, 323, 342, 406, 506 IPC. Thereafter she filed 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 26.5.2008. 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 14.7.2009, while granting Rs. 1,000/- per month as maintenance pendente lite from the date of filing of application and Rs. 5,500/- as litigation expenses.

4. Learned counsel for the appellant submitted that a period of about ten months has elapsed but the respondent has not paid the maintenance pendente lite and litigation expenses as per order dated 14.7.2009. She has filed application for striking off defence of the respondent on account of non-payment of amount of maintenance pendente lite and passing of decree of divorce in her favour. 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.

5. 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.

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.

8. 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