FAO No. M-320 of 2008 ( 1) In the High Court of Punjab & Haryana at Chandigarh CM No. 6548/CII of 2010 and FAO No. M-320 of 2008 (O&M) Date of decision : 24.8.2010 Jagir Singh ..... Appellant vs Rajbir Kaur ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Sumeet Puri, Advocate for Mr. Karanjit Singh, Advocate, for the appellant. Mr. Malkeet Singh, Advocate, for the applicant-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 24th Jeth, 2004 at Village Mirankot, Tehsil and District Amritsar. 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 appellant and his family members started torturing her for not bringing sufficient dowry. On 9.12.2004, she was given merciless beatings by the respondent and his mother and was turned out of the matrimonial home. Thereafter, she filed petition seeking divorce. The husband filed reply to the petition denying all the allegations levelled by her and stated that he willing and ready to keep her. It was also averred that he has also filed petition under Section 9 of the Act for restitution of conjugal rights. It was alleged that the petition has been filed by concocting a false story. The learned court below after considering the evidence on record, allowed the petition filed by the respondent-wife for divorce vide judgment dated 29.10.2008. Aggrieved against the judgment of the learned court below, the husband has filed appeal before this court. During the pendency of the appeal, the wife filed Civil Misc. No. M- 12 of 2009 under Section 24 of the Act for grant of maintenance pendente lite. Upon notice, the application was contested by the husband. The said application was allowed by this Court vide order dated 12.10.2009, granting ` 1,500/- per month as maintenance pendente lite from the date of application. FAO No. M-320 of 2008 ( 2) Learned counsel for the respondent submitted that a period of more than ten months has elapsed but the appellant has not paid the maintenance pendente lite as per order dated 12.10.2009. She has filed Civil Misc. No. 6548/CII of 2010 with a prayer that defence of the appellant be struck off on account of non- payment of amount of maintenance pendente lite and appeal filed by him may be dismissed. 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 submitted that she had never treated him as her husband. The fact regarding non-payment of arrears of maintenance pendente lite was admitted by him. He submitted that inspite of numerous communications by him to the appellant, he has not responded to pay the maintenance fixed by this court. It was submitted by him that the evidence led by the appellant before the trial court be considered and instead of striking off defence of the appellant, the appeal be heard on merits. 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 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 FAO No. M-320 of 2008 ( 3) 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 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. FAO No. M-320 of 2008 ( 4) Admittedly, the respondent has not paid the maintenance pendente lite as ordered by this court on 12.10.2009. A period of more than ten 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 12.10.2009, his defence is struck off. 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 application filed by the wife for striking off defence of the applicant is allowed and the appeal filed by the husband fails and same is dismissed as such. 24.8.2010 (Rajesh Bindal) vs Judge