Judgment:
FAO No.M-268 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIARH FAO No.M-268 of 2010 (O&M) Date of decision:
11. 02.2014 Sapna Rani ……Appellant. Versus Dharamvir …..Respondent. CORAM: HON’BLE MR. JUSTICE S.S. SARON HON’BLE MS. JUSTICE NAVITA SINGH Present: Mr. Balbir Singh, Advocate, for Mr. R.V.S. Chugh, Advocate, for the appellant. Mr. Gopal Singh, Advocate, for the respondent. NAVITA SINGH, J.
In terms of order dated 28.9.2012 passed by this Court, the appellant-Sapna Rani was allowed maintenance pendente lite of `6,000/- per month from the date of filing the application i.e. from 12.8.2010. Besides, she was held entitled to `11,000/- towards litigation expenses. It was ordered that the arrears of maintenance shall be paid within a period of two months and future maintenance shall be paid by the 10th of each calendar month. The respondent did not pay the maintenance.
2. On 19.12.2012, learned counsel for the respondent had taken an adjournment to ascertain as to whether the maintenance and litigation expenses, assessed by this Court vide order dated 28.9.2012 had been paid or not. The case was adjourned to 13.2.2013. On the said date, last opportunity was granted to the respondent to pay the arrears of maintenance and litigation expenses, failing which, it was observed that appropriate order would be passed. The case was adjourned to 26.2.2013. On the said date, in view of the failure of the respondent to pay maintenance and litigation expenses despite orders dated 28.9.2012 and Malik Ramesh 2014.03.04 10:49 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.M-268 of 2010 (O&M) -2- 13.2.2013, his defence in the appeal was struck off. The case was then taken up on 08.4.2013 and counsel for the appellant prayed for time to address arguments. Then, it was taken up on 11.7.2013, on which date, counsel for the appellant was stated to be indisposed off. Then it was adjourned to 09.9.2013 and on the said date, it was adjourned for 02.12.2013, on which date, it was not taken up. The case is listed for hearing today. The defence of the respondent in the appeal having been struck off, we proceed to decide the appeal.
3. This appeal is filed against the judgment and decree dated 19.03.2010, whereby the petition under Section 13 of the Hindu Marriage Act, 1955 ('Act' for short), filed by the present appellant, was dismissed. Along with the appeal, the appellant filed an application under Section 24 of the Act, which was decided on 28.09.2012. Maintenance pendente lite to the tune of `6,000/- per month from the date of application i.e. 12.08.2010 was granted to the appellant and she was also held entitled to `11,000/- towards litigation expenses. The arrears of maintenance, as already observed, have not been paid.
4. The brief facts of the case are that the marriage between the parties was solemnized on 21.02.2007 at Mansa according to Hindu rites and ceremonies. The marriage was consummated but no child was born out of the wedlock. The appellant was deserted by the husband and after that she was living with her parents. She was harassed on account of dowry and was subjected to cruelty for having brought insufficient dowry and was pressurized for bringing more in cash and kind. Since the demands of the respondent and his family were not fulfilled, she was turned out of the matrimonial home in April, 2007. Malik Ramesh 2014.03.04 10:49 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.M-268 of 2010 (O&M) -3- 5. The respondent contested the petition on the ground that the averments in the petition were totally false. Small amount was spent on the marriage and no dowry was taken by the grooms' side. He had not deserted the appellant. Rather she left the matrimonial home on her own and took her 'Istridhan' with her. The appellant and her mother wanted the respondent to live with them at Mansa but he refused. The respondent then left the matrimonial house. He tried to bring her back by holding many meetings but to no effect.
6. Maintenance pendente lite was fixed by the Trial Court as well to the tune of `2,500/- per month from the date of filing of the application together with amount of `3,000/- as litigation expenses.
7. The following issues were framed by the Court below:- 1) Whether the respondent has treated the petitioner with cruelty as alleged?. OPP2 Relief.
8. The learned Trial Court came to the conclusion that it was the appellant who was not willing to go with the respondent at any cost and her mother was not ready to send her daughter to the matrimonial home. Finding that there was no cogent evidence regarding cruelty and desertion, the petition filed by the appellant was dismissed.
9. There is nothing on record to show whether any part or whole of the maintenance awarded by this Court has been paid by the respondent to the appellant together with litigation expenses. Learned counsel for the respondent stated that he tried to contact the respondent, but he could not succeed.
10. Learned counsel for the appellant stated that the defence of Malik Ramesh 2014.03.04 10:49 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.M-268 of 2010 (O&M) -4- the respondent in the appeal has already been struck off vide order dated 26.02.2013 and, therefore, the appeal is liable to be allowed.
11. Record shows that many opportunities were given to the respondent to pay the arrears of maintenance and litigation expenses but he did not do the needful. On 19.12.2012, adjournment was requested for that purpose and the case was adjourned to 13.02.2013. Payment was not made and last opportunity was granted to make the entire payment before the next date i.e. 26.02.2013. However, on that date, again no payment was made. Rather, counsel for the respondent stated that he was not in a position to make statement whether maintenance and litigation expenses had been paid or not. In such situation, the defence of the respondent was struck off. Today, the position remains the same.
12. Since the defence of the respondent stood struck off, the appeal is to be allowed. Reference, in this regard, may be made to the case titled Pinki versus Jwala Prasad 2013 (2) Civil Court Cases 335 (Rajasthan), wherein it was held by the Hon'ble Rajasthan High Court that if the amount of interim maintenance is not deposited by the husband within prescribed period, his petition for dissolution of marriage is to be dismissed forthwith and formal orders thereon are required to be passed immediately.
13. There are numerous other cases on the point, which are Kiran Bala Bangar versus Vijay Kumar Bangar, 2011 (3) PLR425(P&H); Krishan Kumar versus Monika Grover, 2011 (1) HLR694(P&H); Baljit Kaur versus Surjit Singh, 1989 (1) HLR324(P&H); Satish Kumar versus Meena, 2001 (6) AD (Delhi) 563; Asha Rani versus Yash Pal, 1993 (1) HLR30(P&H); Rani versus Parkash Singh, 1997 (2) HLR43(P&H); Malik Ramesh 2014.03.04 10:49 I attest to the accuracy and integrity of this document High Court Chandigarh FAO No.M-268 of 2010 (O&M) -5- Shanti Devi versus Sham Lal, 1994 (1) HLR205(P&H); Santosh versus Balwinder Kumar, 1997 (1) HLR463(P&H); Gurjeet Kaur alias Guddi versus Amar Singh, 1997 (1) HLR429(P&H); Santosh Kaur versus Jagtar Singh, 1995 (3) R.R.R. 709 (P&H) and Shrimati Swarno Devi versus Shri Piara Ram 1975 (1) HLR15(P&H), wherein it was held that wherever the wife is the petitioner in the application under Section 13 of the Act and is the appellant as well, the appeal as also the petition filed by her are liable to be allowed; where she is the appellant in case a decree of divorce is passed against her, even then her appeal is liable to be allowed; where the husband is the appellant as also the petitioner before the Court below, the petition and also the appeal are to be dismissed while in case where the husband is the appellant against a decree of divorce granted in favour of the wife, his appeal is again liable to be dismissed.
14. The above view was taken by this Bench in FAOs No.M-161 of 2011 and No.M-190 of 2011 where the appeal was decided against the husband on account of non-payment of arrears of maintenance.
15. Thus, in view of the discussion as above, the appeal is allowed and so is the petition filed by the appellant under Section 13 of the Act and marriage between the parties is dissolved by a decree of divorce. (S.S. SARON) (NAVITA SINGH) JUDGE JUDGE1102.2014 Ramesh-M Whether to be referred to reporter: Yes/No Malik Ramesh 2014.03.04 10:49 I attest to the accuracy and integrity of this document High Court Chandigarh