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2024 Supreme(Online)(HP) 753
HIGH COURT OF HIMACHAL PRADESH
RAKESH KAINTHLA, J.
SAVITRI NEGI – Appellant
Versus
MOHAN SINGH – Respondent
CR.R/234/2021
The power to strike off the defence of the respondent in a maintenance proceeding should be exercised as a last resort if the default is found to be wilful and contumacious.
Headnote:
Maintenance - Domestic Violence Act - Sections 20, 28-A - The court held that an order to strike off the defence of the respondent should be passed as a last resort if the default is found to be wilful and contumacious. The court remitted the matter back to the trial court to allow the respondent-husband to lead evidence.
Fact of the Case:
The wife and her children filed a petition under Section 125 of Cr.P.C. for grant of maintenance. The husband was a permanent employee earning a salary of around ₹40,000 per month and had additional agricultural income. The trial court allowed the maintenance petition and directed the husband to pay ₹5,000 per month to the wife. Both parties filed revisions against the order.
Finding of the Court:
The High Court held that the trial court erred in striking off the defence of the husband without providing him an opportunity to pay the arrears of interim maintenance. The High Court set aside the orders of the trial court and remitted the matter back to the trial court to allow the husband to lead evidence.
Issues: Whether the respondent-husband had neglected to maintain the petitioner-wife and children, and whether the petition was maintainable.
Ratio Decidendi: An order to strike off the defence of the respondent should be passed as a last resort if the default is found to be wilful and contumacious. The respondent should be provided an opportunity to pay the arrears of interim maintenance before resorting to such an extreme measure.
Final Decision: The High Court set aside the orders of the trial court and remitted the matter back to the trial court to allow the husband to lead evidence.
Rakesh Kainthla, Judge
The present revisions are directed against the order dated 01.09.2021, vide which the application for maintenance filed by the wife was allowed and the husband was directed to pay maintenance @ ₹5,000/- per month to the wife from the date of the filing of the petition. (Parties shall be referred hereinafter to as their respective status).
2. Briefly stated, the facts giving rise to the present petitions are that the wife and her children filed a petition under Section 125 of Cr.P.C. for grant of maintenance. It was asserted that marriage between the husband and wife was solemnized in the year 1987. Three children (petitioners No.2 to 4) were born to the parties. The husband expected a male issue but when three daughters were born, he started quarrelling with his wife and beating her. He demanded ₹5,00,000/- from his wife. He said that he had taken a loan from Smt. Meera. When the wife was unable to meet the demand, the husband turned her and her children out of his home. The husband opened the lock of the door with the intervention of relatives and respectable persons of the society and gave only two rooms to the wife and her children in the house. The husband is also residing in the same building as the petitioners. The husband is a permanent employee posted as Senior Assistant in the office of IP&H Division, Kasumpti, Shimla, H.P. He is getting a salary of ₹ 40,000/- per month and rent of ₹ 7,000/- per month. He also owns a big apple orchard and earns ₹ 5,00,000/- per | annum. He is also the co-owner of the apple orchard at Kinnaur and earns ₹6,00,000/- per annum. His total income is more than ₹15,00,000/- per annum. Petitioners are unable to maintain themselves; hence, the petition was filed for seeking maintenance.
3. The petition was opposed by filing a reply denying the contents of the petition. It was asserted that the wife is receiving the rent of ₹4,500/- from Naresh Kumar and ₹2,000/- from Hem Chand. The children have become majors. Petitioner No.2 was working as a Manager at Aroma Hotel in Chandigarh. She was getting a salary of ₹22,000/- per month. Petitioner No.3 was doing the course of BDS at Shimla and was going to finish her course in 2016. Petitioner No.1-wife was running a boutique at home and she was earning ₹7,000/- per month. The respondent-husband was providing all expenses for the education of his children. The wife became Brahamkumari in March 2014. She filed various complaints against her husband before various authorities. Respondent-husband had taken a loan to construct the house. The petition was filed on the false facts. The respondent-husband was getting ₹36,200/- whereas petitioner No.1 wife was getting ₹6,500/- per month as rent; therefore, it was prayed that the present petition be dismissed.
4. An application for interim maintenance was filed, which was allowed and maintenance of ₹6,500/- per month was awarded to all the petitioners from the date of the order till the pendency of the main petition.
5. The following issues were framed by the learned Trial Court on 26.02.2021:
“1. Whether the respondent has neglected to maintain the petitioner as alleged...OPP.
2. Whether the petition is not maintainable as alleged? OPR.
3. Relief.”
6. The parties were called upon to produce the evidence. Petitioner No.1-wife examined herself.
7. When the matter was listed for recording the respondent/husband’s evidence on 19.08.2021, the learned Trial Court noticed that the husband was not paying the maintenance; hence, it struck off his defence and discharged the witnesses.
8. The learned Trial Court held that the version of the petitioners (wife and children) that the respondent/husband had neglected to maintain them was acceptable. The petitioner No.1 being the legally wedded wife was entitled to be maintained by her husband. The petitioner-wife was getting the rent from the tenants | @₹5500/- per month, which was to be adjusted. The income of the respondent was proved to be ₹ 34,625/-. The Dear
