Satish Kumar Mittal, J.:— Appellant Usha Rani (hereinafter referred to as ‘the wife’) has filed this appeal against the ex parte decree of divorce dated 23.8.1996, passed against her on a petition filed by the respondent Prem Singh (hereinafter referred to as ‘the husband’) under Section 13(1) of the Hindu Marriage Act for dissolution of marriage on the ground of desertion and cruelty.
2. In this case, marriage between the parties was solemnized on 16.2.1991 in accordance with Hindu rites and ceremonies. One daughter was born out of this wed-lock, who is now residing with the wife. In the year 1994, the petition for divorce was filed by the husband against the wife on the ground of desertion and cruelty. It was alleged that the wife had refused to live with the husband and the efforts made by the Panchayat to bring the wife back to her matrimonial home failed. It was also alleged that behaviour of the wife was cruel towards the husband.
3. On notice, the wife appeared and filed written statement. She controverted all the allegations levelled by the husband. On the pleadings of the parties, on 30.11.1995, issue was framed to the effect as to whether the petitioner (husband) is entitled to a decree of divorce on the grounds of cruelty and desertion, as alleged. Thereafter, case was adjourned to 18.12.1995 for evidence of the husband. On 18.12.1995, the husband examined himself and his father as witnesses and closed his evidence. Thereafter, on the same day, the wife was asked to lead evidence and she partly examined her brother. His further cross-examination was deferred as the parties wanted date for compromise.
4. Thereafter, the case was adjourned to several dates, but the parties could not arrive at any compromise. On 12.3.1996, the wife was proceeded against ex parte by passing the following order:—
Present: Sh. S.S Kalson, Adv. for Petitioner
Sh. N.N Girotra, Advocate for Respondent
5. However, Sh. Girotra, Advocate withdraws for want of instructions. Respondent proceeded ex parte. Arguments heard. For order to come up on 13.3.1996
6. On 13.3.1996, an application was filed on behalf of the wife for adjournment for her evidence as she was suffering from appendicitis. The said application was opposed on the ground that she had already been proceeded against ex parte on the last date of hearing. On that, counsel for the wife requested for adjournment to file application for setting aside ex parte proceedings. On his request, the case was adjourned to 20.3.1996 On the adjourned date, an application for setting aside ex parte proceedings was filed and the case was adjourned to 30.4.1996 for consideration on the said application. Thereafter, case was adjourned twice. On 31.7.1996, the husband was present in person, but none was present on behalf of the wife. On that day, the following order was passed:—
Present: Petition in person.
None for the respondent.
7. Respondent proceeded against ex parte. Petitioner's evidence was closed on 18.12.1995 For arguments, to come up on 10.8.1996
8. Thereafter, arguments were heard on 10.8.1996 and the order was pronounced on 23.8.1996, passing the decree of divorce against the wife on the ground of desertion and cruelty.
9. Against the aforesaid judgment and decree, the wife filed the instant appeal on 17.9.1996, which was listed for motion hearing on 18.9.1996, on which date notice of motion was issued to the husband and he was also restrained from re-marrying till further orders. On 10.11.1997, the husband appeared through his counsel and on 8.12.1997, the appeal was admitted and the stay was continuing.
10. The wife also filed an application under Section 24 of the Hindu Marriage Act for the grant of maintenance pendente lite and litigation expenses, which was allowed vide order dated April 29, 1998 and the husband was directed to pay maintenance of Rs. 1,500/- per month to the wife i.e Rs. 1,000/- for the wife and Rs. 500/- for the child from the date of application i.e 14.9.1996 In addition to that, the husband was also directed to pay Rs. 2,500/- as litigation expenses.
11. Thereafter, the case was taken up for hearing on several dates and the husband was directed to pay the amount of maintenance, but till today, he has paid only Rs. 5,400/- towards the maintenance (Rs. 400/- on 11.5.2000, Rs. 4,000/- on 12.9.2002 and Rs. 1,000/- on 15.11.2002). From the various orders on the record, it appears that the husband is adamant not to pay maintenance amount to the wife. On November 15, 2002, when an amount of Rs. 1,000/- was paid, a detailed order was passed, which indicates that in spite of the undertaking given by the husband to pay Rs. 10,000/- against the arrears of more than Rs. 70,000/-, only an amount of Rs. 4,000/- was paid on 12.9.2002 Thereafter, the case was adjourned to 15.11.2002 for payment of the balance amount, on which date only Rs. 1,000/- were paid. In these circumstances, respondent was sent to civil imprisonment for three months. Even thereafter, the wife has not been paid any amount and the appeal was ordered to be listed for final disposal.
12. Counsel for the wife submitted that since the husband has not paid the amount of maintenance, as ordered by this Court, therefore, his defence is liable to the struck off and the appeal filed by the wife should be accepted solely on the ground of non-payment of maintenance pendente lite and litigation expenses. In support of his contention, he relied upon decisions of this Court in Harpreet Kaur v. Parminder Singh, 1991 Civil Court Cases 217; Asha Rani… v. Yash Pal…., 1993 (Suppl.) Civil Court Cases 277 and Rani… v. Parkash Singh…., 1996 (2) RRR 120 : 1996 (2) Civil Court Cases 26. On merits also, counsel for the wife submitted that the appellant was not provided full opportunity to defend herself and she was wrongly proceeded against ex parte, when her counsel before the trial Court pleaded no instructions. He further submitted that the wife filed an application for setting aside the ex parte proceedings, but the said application was not decided and the appellant was again proceeded ex parte. Thereafter, the trial Court passed the impugned ex parte judgment and decree against her. Counsel for the wife further submitted that immediately after framing of the issues, two witnesses were examined by the husband and evidence was closed by him. Thereafter, on the same very day, the wife was asked to lead evidence and she got recorded examination-in-chief of her brother and thereafter, the matter was adjourned on the joint request of the parties for compromising the matter. Thereafter, the wife was proceeded ex parte. Learned counsel submitted that from these facts, it is clear that the wife was not provided sufficient opportunity to defend herself. Therefore, on merits also, the impugned judgment and decree is liable to be set aside and the matter requires to be remanded to the trial Court to give decision after providing full opportunity to the wife to lead evidence.
13. On the other hand, counsel for the husband could not give any explanation regarding non-payment of maintenance pendente lite and litigation expenses. However, he submitted that defence of the husband cannot be struck off only on this ground and he cannot be debarred from arguing the matter. In support of his contention, counsel for the husband relied upon decision of the Hon'ble Supreme Court in Modula India v. Kamakshya Singh Deo, (1988) 4 SCC 619 : AIR 1989 Supreme Court 162, wherein it was held that even after striking off of the defence, the tenant is entitled to cross-examine plaintiff's witnesses and address arguments on the basis of plaintiff's case. He also relied upon a decision of this Court in Kupil Dev Aggarwal… v. Rajni…., 2001 (1) Civil Court Cases 432, wherein it has been held that even if defence of the respondent is struck off due to non-payment of maintenance pendente lite and litigation expenses, he cannot be debarred from cross-examining the witnesses of the other party and argue the case to show that the petitioner has failed to make out a case for any relief under the Act. However, on merits, he has submitted that the wife was provided full opportunity to lead evidence, but in spite of that she did not appear before the trial Court and was rightly proceeded against ex parte. Thus, he argued that there is no illegality in the impugned judgment and decree. Counsel for the husband further argued that during the pendency of the appeal, the husband has contacted second marriage on 18.6.1997, therefore, if the decree of divorce is set aside, a great hardship will be caused to him. He further submitted that admittedly, the instant appeal was filed on 17.9.1996 and vide order dated 18.9.1996, the husband was restrained from remarrying till further orders, but prior to 18.6.1997, the day when the husband contacted second marriage, no notice was served upon him.
14. I have heard the arguments of learned counsel for both the parties and have perused the record of the case.
15. Though keeping in view the conduct of the husband that he has failed to pay maintenance pendente lite and litigation expenses, his defence is liable to be struck off and the appeal filed by the wife is to be allowed on this ground alone in view of the law laid down by this court in Harpreet Kaur v. Parminder Singh, Asha Rani… v. Yash Pal…. and Rani… v. Parkash Singh…. (supra). However, I have heard counsel for the husband on merit of the case. In my opinion, the impugned judgment and decree is liable to be set aside. In this case, the issues were framed on 30.11.1995 Thereafter, the case was adjourned to 18.12.1995 for evidence of the husband. On that date, the husband, after examining himself and his father, closed evidence. On the same day, the wife was asked to lead evidence. Her brother, who was present in Court, was partly examined and his cross-examination was deferred as there was likelihood of compromise between the parties. Thereafter, the case was adjourned for several dates. On 12.3.1996, counsel for the wife pleaded no instructions, but the trial Court, instead of issuing notice to the wife, proceeded her ex parte. On the next date, the wife filed an application requesting to lead her evidence, but her request was not acceded on the ground that she was proceeded against ex parte and until and unless ex parte proceeding is set aside, she cannot be allowed to lead evidence. Thereafter, the wife filed application for setting aside ex parte proceedings, but the same remained undecided and the matter was finally disposed of. From the various zimni orders, as discussed above, it appears that the wife was not provided reasonable and proper opportunity to defend herself and the petition for divorce was allowed on the ground of desertion and cruelty merely on the basis of statements of two witnesses examined by the husband. When the counsel for the wife pleaded no instructions, it was incumbent upon the trial Court to issue notice to the wife, but no such notice was issued and she was proceeded against ex parte. It was further necessary for the trial Court to dispose of the application filed by the wife for setting aside the ex parte proceedings. However, on 31.7.1996, she was again proceeded ex parte. No order was passed on the said application. Thus, in my view, the ex parte decree of divorce passed by the trial Court is not sustainable and the same is liable to be set aside.
16. I do not find any force in the contention of counsel for the husband that if decree of divorce is set aside, great hardship will be caused to the husband because of his contacting second marriage. The appeal was filed in time and the husband was restrained from remarrying till further orders. Undisputedly, the second marriage has been solemnized by the husband thereafter. Though, the husband has taken plea that he was not aware of the filing of the appeal and the interim order passed by this Court, but at this moment, I am not going into validity of the second marriage, which will be judged at subsequent stage in an appropriate proceedings. However, in view of my aforesaid findings, the impugned judgment and decree is liable to be set aside.
17. Consequently, the instant appeal is allowed, the impugned judgment and decree dated 23.8.1996 is set aside and the case is remanded to the trial Court to dispose of the same after providing sufficient opportunity to the wife to lead evidence. Parties through their counsel are directed to appear before the trial Court on March 14, 2005.
Appeal allowed.