Failure to pay maintenance and litigation expenses by the husband can lead to striking out of his defense and allowance of the wife's appeal against the decree of divorce, in line with the principle that a negligent husband not paying maintenance is not entitled to relief claimed in matrimonial proceedings.

S. N. AGGARWAL, J. :- The question that we need to answer in this appeal has been referred to us by brother Sodhi, J. who on 4-8-2004 when the matter came for hearing before him passed the following order:-

"Vide order dated 6th May, 2004, Hon'ble Mr. Justice Madan B. Lokur has expressed his dissent against the judgment in Bani v. Prakash Singh (AIR 1996 P and H 175) which appears to have been followed by a judgment of this Court in Satish v. Meena (93 (2001) Delhi Law Times 545). In this view of the matter, it would be appropriate that this matter is referred to a Larger Bench.

2. We have seen the order dated 6-5-2004 of brother Lokur, J. and we find no crystallized dissent in the said order that there is no prestlise descent (dissent) against the judgment in Bani's case (supra). Faced with this situation, we have two options before us, either to answer the reference ourselves or to remand the case back to the learned single Judge for decision of the appeal in accordance with law. We prefer to follow the former as it would advance the cause of justice and would save the parties botheration of on going litigation.

3. The question referred before us is whether the appeal against the decree of divorce filed by the appellant-wife can be allowed straightway with hearing the respondent-husband in the event of his failing to pay interim maintenance and litigation expenses granted to the wife during the pendency of the appeal.

4. The question we are confronted with has not arisen for the first time but the said question has already been examined in number of cases not only by Delhi High Court but also by other High Courts. In this context, it would be significant to refer to para 7 of the judgment in Bani's case (AIR 1996 P and H 175) (supra) which is reproduced here-in-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 of maintenance and litigation expenses to the wife his defence can be struck out. No doubt, in this appeal he is respondent. His defence is contained in this petition filed under Section 13 of the Act.

In a plethora of decisions of this Court "Smt. Swarno Devi v. Paira Ram, 1975 HLR 15; Gurdev Kaur v. Dalip Singh, 1980 HLR 240; Smt. Surinder Kaur v. Baldev Singh, 1980 HLR 514, Shela Devi v. Madan Lal, 1981 HLR 126 and Sumarti Devi v. Jai Parkash, 1985 (1) HLR 84 it is held that when the husband fails to pay maintenance and litigation expenses to the wife his defence is to be struck out. The consequence is that the appeal is to be allowed and his petition under Section 13 of the Act is to be dismissed."

5. The reference to the portion of the judgment in Bani's case (AIR 1996 P and H 175) extracted here-in-above would show that the Punjab and Haryana Court and Orissa High Court have taken a unanimous view that in case the husband commits default in payment of interim maintenance to his wife and children then he is not entitled to any matrimonial relief in proceedings by or against him. The view taken by Punjab and Haryana High Court in Bani's case has been followed by a single Judge of this Court in Satish Kumar v. Meena, we

tend to agree with this view as it is in consonance with the first principle of law. We are of the view that when a husband is negligent and does not pay maintenance to his wife as awarded