FAO No. M-194 of 2010 ( 1) In the High Court of Punjab & Haryana at Chandigarh FAO No. M-194 of 2010 (O&M) Date of decision : 22.3.2011 Kuldip Kaur ..... Appellant vs Gian Chand ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Ms. Naiya Gill, Advocate, for the appellant. Mr. Rajiv Joshi, 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 appellant-wife under Section 13 of the Hindu Marriage Act, 1955 (for short, “the Act”) for divorce, on the ground of cruelty, was dismissed 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. FAO No. M-194 of 2010 ( 2) 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. 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. 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. FAO No. M-194 of 2010 ( 3) 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 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 FAO No. M-194 of 2010 ( 4) 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 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.” Admittedly, the respondent has not paid the maintenance pendente lite and litigation expenses as ordered by the learned court below on 29.1.2008. His defence was struck off. Still the petition filed by the wife for grant of divorce was dismissed. The person who is disobeying the order of the court, cannot be allowed to be heard on merits. Since, the respondent has not complied with the order on 29.1.2008, he cannot be heard on merits. 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 and the husband cannot be permitted to be heard on merits. And the court can accept the plea of the wife. In the present case, the appellant wife sought divorce on the ground of cruelty. In the trial court, the husband respondent filed reply denying the ground of cruelty and alleging that the wife had left the FAO No. M-194 of 2010 ( 5) matrimonial home without any sufficient cause or reason. His defence was struck off by the learned court below also as he did not pay the maintenance fixed. In this court also, learned counsel for the respondent submitted that the husband-respondent is not in a position to pay the same. His defence cannot be considered now. Consequently, the appeal filed by the wife is allowed and the divorce petition filed by her is accepted by passing a decree of divorce in her favour. Decree sheet be prepared. 22.3.2011 (Rajesh Bindal) vs Judge