Non-payment of maintenance pendente lite can lead to the striking off of the defense and dismissal of the appeal.

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

2. Briefly the facts of the case are that the marriage of the parties was solemnised as per Hindu rites on 9.3.2000 at Sirhind Mandi, District Fatehgarh Sahib. After the marriage, the parties resided at their matrimonial home. The marriage was consummated and one male child was born out of the wedlock, who is presently residing with the mother. It was alleged that after some time of the marriage, the respondent started treating the appellant with cruelty. She always used to abuse him and his family members. She always refused to prepare the meals. With the aforesaid allegations, the petition seeking divorce was filed.

3. The respondent filed reply to the petition denying all the allegations levelled against her and stated that as her parents could not fulfill his dowry demands, he has filed this petition by concocting a false story.

4. The learned court below after considering the evidence on record, dismissed the petition filed by the appellant-husband for divorce vide judgment dated 9.6.2009. Aggrieved against the judgment of the learned court below, the husband has filed appeal before this court.

5. During the pendency of the appeal, the wife filed Civil Misc. No. M-170 of 2009 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 husband. The said application was allowed by this Court vide order dated 3.2.2010, granting ` 5,000/-per month as maintenance pendente lite.

6. Learned counsel for the respondent submitted that more than one year has elapsed but the appellant has not paid the maintenance pendente lite as per order dated 3.2.2010. It was also submitted that the appellant has also not paid the costs imposed by this court on the earlier dates. She has prayed for striking off defence of the appellant on account of non-payment of amount of maintenance pendente lite and dismissal of appeal 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.

7. While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the appellant-husband submitted that she had never treated him as her husband. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. The appellant is present in court. He has handed over a demand draft of ` 10,000/-dated 6.4.2011 drawn on State Bank of Patiala, Sirhind Mandi, in favour of Monica Grover to the counsel for the respondent. On the asking of the court for the arrears of maintenance and the costs imposed by this court on the earlier dates, he stated that he is not in a position to pay the same. The fact that order passed by this court fixing maintenance was not challenged by the appellant any further and the same attained finality. However, he submitted that the evidence led by the appellant before the trial court be considered and instead of striking off defence of the appellant, the appeal be heard on merits. 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