In view of the aforesaid facts and circumstances and the legal position, it is quite evident that for failure of the respondent to pay the arrears of maintenance despite being granted a last opportunity, his defence is deemed to be struck off. In consequence of the defence being struck off, the allegations of the appellant-wife have gone unrebutted and are to be accepted. Accordingly, the appeal of the appellant-wife is allowed and the impugned judgment and decree dated 16.2.2012 passed by the learned Additional District Judge, Ferozepur is set aside and the petition filed by the appellant seeking dissolution of the marriage between the parties by a decree of divorce is accepted and the marriage between the parties shall stand dissolved by a decree of divorce.
Punjab-Haryana High Court
Rani @ Raj Kaur vs Balwinder Singh on 13 January, 2014
CORAM: MR. JUSTICE S.S. SARON.
MS. JUSTICE NAVITA SINGH.
Citation;AIR 2014 P&H 34
The appellant Rani alias Raj Kaur has filed the present appeal against the judgment and decree dated 16.2.2012 passed by the learned Additional District Judge, Ferozepur whereby her petition seeking dissolution of the marriage between the parties on the grounds of cruelty and desertion has been dismissed. The marriage between the parties was solemnized at village Haziwala by way of Anand Karaj ceremony on 13.7.2006. The parties after their marriage lived and cohabited as husband and wife. They have no child from their marriage. The father of the appellant gave sufficient dowry which inter alia includes a Amit Khanchi motorcycle, 10 tolas of gold ornaments, furniture, bedding etc.According to the appellant, the respondent had undesirable and illicit relations with another lady. The said lady used to visit the house of the parties and when the appellant asked about her, the respondent admitted his relations with her. When the appellant stopped the respondent from entertaining the said lady, he continued with his illicit and undesirable relations. Besides, it is alleged that the respondent used to beat the appellant. She was harassed from the very beginning of her marriage and a demand for more dowry was made. In the last week of October 2007, it is alleged that the respondent gave a severe beating to the appellant. However, she kept quiet about this. Since no child was born from the marriage, the mother-in-law of the appellant harassed her. Thereafter, in March 2008, it is alleged that the respondent and his family members gave a severe beating to the appellant and turned her out of the matrimonial home. The father of the appellant convened a Panchayat and went to the house of the respondent. The respondent and his family members, however, insulted them and insisted on their demand for a colour television and a cooler. The father of the appellant then gave Rs.10,000/- for a colour television and cooler. The appellant was left at the house of the respondent. However, there was no change in the attitude of the respondent and his family members. They threatened the appellant that they would arrange marriage of the respondent with another lady. Again the appellant was turned out of the matrimonial home in her wearing apparels. Being, fed up with the behaviour of the respondent and his family members, the appellant decided to get divorce. The respondent then started demanding amount which Amit Khanchi was spent by him on the marriage, besides, the gold ring and gold tikka which were given to her by the respondent. It is only then that he agreed to give divorce. In order to settle the matter, the father of the appellant gave Rs.34,000/- as cost of expenditure incurred by the respondent on the marriage as well as for the gold ring and gold tikka. A writing to this effect was reduced on the stamp paper in the presence of marginal witnesses namely Inderjit Singh and Baldev Singh. Thereafter, a joint petition for divorce by way of mutual consent in terms of Section 13-B of the Hindu Marriage Act, 1955 was filed in the Court of learned District Judge, Ferozepur. The statements of the parties were recorded at the first motion. The case was then adjourned to 1.6.2010 for recording the statements of the parties on the second motion. At that time the respondent refused to give his consent and statement and the petition under Section 13-B of the Hindu Marriage Act was dismissed. Alleging ill-treatment on the part of the respondent, the petitioner filed the petition for dissolution of the marriage. On notice, the respondent appeared and contested the petition filed by the appellant for grant of divorce. The fact of marriage between the parties was admitted. Allegations regarding demand of dowry were denied. It was denied that any dowry or dowry articles were given to him or his family members. The respondent stated that the appellant had levelled false allegations regarding demand of dowry against him. In fact from the very beginning, the appellant was declaring that she never consented to the marriage with the respondent. She used to declare that she is neither ready nor willing to reside with the respondent and she intends to get rid of the respondent on one pretext or the other. Amit Khanchi The respondent also denied his relationship with another lady. It is
stated that when the appellant openly and flatly refused to live with him, he was left with no option but to sign the divorce petition under Section 13-B of the Hindu Marriage Act. However, the act, conduct and behaviour of the respondent towards the appellant compelled her to change her attitude towards her husband and she became ready and willing to reside with him. Therefore, the parties mutually decided to withdraw their consent and on the asking of the appellant, the respondent withdrew his consent. In the said circumstances, the joint petition was dismissed. Thereafter, it is alleged that the parties resided together as husband and wife but after a few days the appellant again started dancing on the same tune. She left her matrimonial home without informing the respondent. The respondent also stated that the petition now filed is a counterblast to the petition filed by him under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights which was pending. The other allegations were specifically denied. The learned trial Court on 28.9.2011 framed the following issues:-
1. Whether the respondent treated the petitioner (now appellant) with cruelty?
2. Whether the respondent deserted the petitioner (now appellant) without sufficient cause? OPA
3. Whether the petition is false, frivolous and vexatious? OPR
4. Relief.
The learned trial Court after considering the evidence and material on record dismissed the petition of the appellant.Aggrieved against the same, the appellant has filed the present appeal.
During the pendency of the appeal, in terms of order dated 29.8.2012, the respondent was ordered to pay litigation expenses of Rs.10,000/- to the appellant on the next date of hearing. On 3.12.2012, Rs.5000/- was paid towards litigation expenses to the appellant. The parties were directed to appear before the Mediation and Conciliation Centre on 22.1.2013 on which date the respondent was to pay the remaining amount of litigation expenses. In the Mediation and Conciliation Centre, a sum of Rs. 4000/- was paid by the respondent to the appellant on 5.3.2013. Thereafter, the parties did not appear on 25.3.2013 and only counsel for the parties appeared. Then on 11.4.2013, the mediation proceedings failed and the case was sent back to this Court. On 21.5.2013 it was observed by this Court that despite repeated opportunities, the respondent has not paid arrears of maintenance fixed under Section 125 of the Code of Criminal Procedure ("CrPC" - for short). The respondent was directed to clear all the arrears of maintenance before the next date of hearing failing which his defence in the appeal, it was ordered, would be struck off. The case was adjourned to 22.7.2013. Again on the said date i.e. 22.7.2013 it was observed that the respondent had not cleared the arrears of maintenance payable under Section 125 CrPC. The case was adjourned to 31.7.2013 for arguments on the application under Section 24 of the Hindu Marriage Act. On 31.7.2013 it was agreed that maintenance pendente lite would be paid to the appellant to the extent of Rs.4000/- per month minus Amit Khanchi any amount which had been paid whether under Section 125 CrPC or under Section 24 of the Hindu Marriage Act before the trial Court. The arrears of maintenance, it was ordered, shall be paid within two months. The case was then taken up on 23.10.2013 and the counsel for the appellant stated that maintenance was not being paid by the respondent. To enable the respondent to pay the arrears of maintenance, the case was adjourned to 19.11.2013. On 19.11.2013 it was observed that the application for grant of maintenance was taken up for consideration on 31.7.2013 and on agreement, maintenance pendente lite was fixed at Rs.4000/- per month minus any amount which was being paid, whether under Section 125 CrPC or under Section 24 of the Hindu Marriage Act. The appeal came up for hearing on 23.10.2013 and was adjourned to 19.11.2013 for payment of arrears of maintenance. Counsel for the respondent stated that the respondent was not in a position to pay maintenance. A fortnight's time was granted to the respondent to clear arrears of maintenance failing which his defence shall be deemed to have been struck off. In case arrears of maintenance were not paid within 15 days, the appellant, it was observed, may file an application under Section 28-A of the Hindu Marriage Act for recovery of arrears of maintenance. The case was adjourned to 09.12.2013. On 09.12.2013 last opportunity was granted to the respondent to clear the arrears of maintenance failing which the order dated 19.11.2013, it was ordered, shall come into effect. The case was adjourned for today.
Today, when the case was taken up, learned counsel for the appellant on instructions from the appellant has submitted that the respondent has not paid the arrears of maintenance. In the Amit Khanchi aforesaid circumstances and keeping in view the last opportunity
having been granted, the order dated 19.11.2013 has come into effect and defence of the respondent is deemed to have been struck off. In the aforesaid circumstances, it may be noticed that there being no defence of the respondent; the averments made in the petition filed by the appellant are to be accepted. In the circumstances, it is to be considered whether the appeal filed by the appellant is liable to be allowed. This Court in the case of Shanti Devi v. Sham Lal, 1994 (1) HLR 205 held that in the event of non-payment of maintenance pendente lite by the husband, his defence can be struck down and resultantly, appeal of the wife has to be accepted. Reliance was placed on the case of Smt. Swarno Devi v. Piara Ram, 1975 HLR 15, wherein it was held that on the failure of the husband to make payment of maintenance, his defence could be struck off. In the aforesaid case, the appeal of the wife was accepted solely on the ground that the husband had not paid her the maintenance allowance. Reliance was also placed on the case of Smt. Parkasho v. Lachhman Singh, 1977 HLR 334, wherein it was held that on the failure of the husband to pay maintenance, wife's appeal was to be accepted after striking down the defence of the husband. In Smt. Bala Devi v. Ram Kumar, 1977 (2) PLR 316 (P&H), an appeal was filed by the wife against dismissal of her petition for divorce on the ground of cruelty. During the pendency of the appeal, an application under Section 24 of the Hindu Marriage Act was filed for grant of interim maintenance, which was fixed ex parte at Rs.750 per month. The arrears were ordered to be paid within two months. On failure to pay the maintenance, it Amit Khanchi was held that the defence of the husband is to be struck off and allegations levelled against him regarding the cruelty meted out to the wife, are to be taken as correct and established. In Gurjeet Kaur alias Guddi v. Amar Singh, 1997 (3) PLR 515 (P&H), a petition was filed by the wife for grant of divorce on the ground of cruelty. It was alleged by the wife that she was given beatings and was turned out of the house. The husband denied the allegations and the prayer for grant of decree of divorce was declined by the learned trial Court. In appeal, interim maintenance was fixed, but it was not paid by the husband. It was held that the maintenance having not been paid, the Court had no option but to strike off the defence of the respondent. It was so ordered. Accordingly, the allegations of the appellant having gone unrebutted, the same were held to be accepted. In view of the averments of the appellant that she had been maltreated by the respondent and there being no rebuttal to the said allegations, it was held to be proved that the respondent treated the appellant with cruelty. Accordingly, the appellant was held entitled to a decree of divorce. Similar views have been taken in Santosh Kaur v. Jagtar Singh, 1995 (3) RRR 709 (P&H), Santosh v. Balwinder Kumar, 1997 (3) PLR 516 (P&H), Asha Rani v. Yash Pal, 1993 (Suppl.) Civil Court Cases 277 (P&H), Rani v. Parkash Singh, 1996 (2) PLR 219 (P&H) and Usha Rani v. Prem Singh, 2005 (2) PLR 292 (P&H).
In view of the aforesaid facts and circumstances and the legal position, it is quite evident that for failure of the respondent to pay the arrears of maintenance despite being granted a last opportunity, his defence is deemed to be struck off. In consequence of the defence being struck off, the allegations of the appellant-wife have gone unrebutted and are to be accepted. Accordingly, the appeal of the appellant-wife is allowed and the impugned judgment and decree dated 16.2.2012 passed by the learned Additional District Judge, Ferozepur is set aside and the petition filed by the appellant seeking dissolution of the marriage between the parties by a decree of divorce is accepted and the marriage between the parties shall stand dissolved by a decree of divorce.
(S.S. SARON)
JUDGE
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