FAO No. M-74 of 2009 (1) In the High Court of Punjab & Haryana at Chandigarh FAO No. M-74 of 2009 (O&M) Date of decision : 2.8.2010 Kewal Singh ..... Appellant vs Veerpal Kaur ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Surinder Garg, Advocate, for the appellant. Mr. M. K. Garg, Advocate, for the respondent. Rajesh Bindal J. Challenge in the present appeal is to the judgment of the learned court below whereby petition filed by the respondent-wife under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”) for divorce, was allowed. Briefly the facts of the case are that the marriage of the parties was solemnised as per Sikh rites on 5.10.2005 at Kotkapura. After the marriage, the parties resided at their matrimonial home. The marriage was consummated but no child was born out of the wedlock. It was alleged that after some time of the marriage, the husband started treating the wife with cruelty. On 15.4.2006, she was turned out of the matrimonial home. Since then she is living with her parents. Number of efforts were made by the parents of the respondent wife for rehabilitation but all in vain which resulted into filing of petition seeking divorce. The respondent filed reply to the petition denying all the allegations levelled against him and stated that the respondent wife is living separate from him without any reasonable cause and excuse. It was also averred that he is still ready to take her back but she is not ready to join his company. The petition for dissolution of marriage was filed by concocting a false story. However, his defence was struck off on 19.3.2008 as he failed to pay maintenance pendente lite to the respondent wife awarded to her vide order dated 27.2.2008. The learned court below after considering the evidence led by the respondent-wife on record, allowed the petition filed by the respondent-wife for dissolution of marriage vide judgment and decree dated 5.12.2008. Aggrieved against the judgment of the learned court below, the husband has filed appeal before this court. FAO No. M-74 of 2009 (2) Learned counsel for the appellant-husband submitted that the story put forth by the respondent wife is a concocted one. She had never treated him as her husband. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. However, he submitted that the financial position of the appellant is not good, therefore, he even now is not in a position to pay the maintenance amount. It was also submitted that allegations against the appellant are false and baseless, however, as the defence was struck off, he could not prove his case. It was submitted by him that the appellant be granted opportunity to lead evidence and instead of striking off his defence, the appeal be heard on merits. During the pendency of the appeal, the wife filed Civil Misc. No. M- 104 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 17.2.2010, granting ` 3,000/- per month as maintenance pendente lite. Learned counsel for the respondent submitted that more than six months has elapsed but the appellant has not paid the maintenance pendente as per order dated 17.2.2010. 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. While not disputing the proposition of law laid down in the aforesaid authorities, learned counsel for the appellant-husband admitted the fact regarding non-payment of arrears of maintenance pendente lite. He, however, submitted that he had written two letters to his client for clearance of the arrears of maintenance but he has not responded back. Heard learned counsel for the parties. 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. 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 FAO No. M-74 of 2009 (3) 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 his petition filed under Section 13 of the Act. In a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram, 1975 H.L.R. 15; Gurdev Kaur v. Dalip Singh, 1980 H.L.R. 240; Smt. Surinder Kaur v. Baldev Singh, 1980 H.L.R. 514; Sheela Devi v. Madan Lal, 1981 H.L.R. 126 and Sumrati Devi v. Jai Parkash, 1985 (1) H.L.R. 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.” In Ramesh's case (supra), this court opined that with the striking off defence of the husband his written statement is taken out of consideration and the averments of the wife in the petition are considered as correct and uncontroverted and the court can proceed thereon. Relevant para 10 thereof is extracted below:- “There is another angle to look at the matter. As at present, we have on the record of the case only the petition filed by the respondent-wife under Section 13 of the Hindu Marriage Act. The aforesaid petition has not been controverted, inasmuch as the written statement filed by the respondent has already been kept out of the consideration. As per the provisions contained in Section 20 (2) of the Hindu Marriage Act the statements contained in every petition under the Act shall be verified by the petitioner or some other competent person in the manner required by law for the FAO No. M-74 of 2009 (4) verification of the plaints, and may, at hearing, be referred to as evidence. In this view of the matter, the petition duly verified by the respondent-wife under the provisions contained in Section 20 (2) of the Hindu Marriage Act, is also to be treated as substantive evidence. Thus, the case of the respondent-wife is fully supported by the evidence produced by her.” Similar view was taken by this Court in FAO No. M-190 of 2008- Meera vs Yogesh Kumar, decided on 29.4.2010. Admittedly, the respondent has not paid the maintenance pendente lite and litigation expenses as fixed by this court on 17.2.2010. A period of more than six months has elapsed but till date he has not paid even a single penny to the wife. He has not even filed any appeal against the aforesaid order fixing maintenance. The person who is disobeying the order of the court, cannot be allowed to be heard on merits. Since, the appellant has not complied with the order passed by this court on 17.2.2010, his defence is struck off. Position even before the court below was the same. The guidance as to how to proceed further in such circumstances is available from the judgments referred to above. It has been consistently opined that after the striking off defence of the husband on account of non-payment of maintenance, the wife's allegations in the petition are to be taken as correct or the husband cannot be permitted to be heard on merits. Consequently, the appeal filed by the husband fails and same is dismissed as such. 2.8.2010 (Rajesh Bindal) vs Judge (Refer to Reporter)