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 Sikh rites on 14.12.1977 at village Gobindpur Khun, Tehsil and District Hoshiarpur. After the marriage, the parties resided in their matrimonial home at village Pasla Patti Shokran, Tehsil Phillaur, District Jalandhar. Three children were 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. It was alleged that on 27.5.2006, the respondent again demanded a sum of ` 2,00,000/-and when the appellant refused to bring the amount from her parents, she was turned out of matrimonial home after giving severe beatings. Thereafter she filed petition for divorce. The respondent filed reply to the petition. However, as he failed to pay the interim maintenance, the learned court below struck off his defence. Still, the learned court below dismissed the petition filed by the appellant-wife for divorce vide judgment dated 14.1.2010. Aggrieved against the judgment of the learned court below, the appellant-wife filed appeal before this court.

3. Learned counsel for the appellant submitted that the learned court below has wrongly dismissed the petition filed by the wife. The learned court below had fixed maintenance ` 2,500/-per month vide order dated 29.1.2008. The respondent did not pay even a single penny till date. She submitted that defence of the respondent was struck off by the learned court below but inspite of that evidence led by the wife was ignored. It was submitted that the wife was tortured for bringing insufficient dowry and treated with cruelty by the husband. She has led evidence in this regard. It was further submitted that when the husband is disobeying the orders of the court and is not in a position to maintain the wife, the petition filed by the wife should have been allowed. She prayed that defence of the respondent be struck off on account of non-payment of amount of maintenance pendente lite and decree of divorce be passed 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, Santosh vs Balwinder Kumar 1997 (3) R. C. R. (Civil) 311, and Ramesh vs Rajpati 2003 (3) P. L. R. 761.

4. 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 his 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 maintenance, but learned counsel for the respondent submitted that the husband-respondent is not in a position to pay the same.

5. Heard learned counsel for the parties.

6. 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.

7. 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