Mohinder Verma v. Sapna

1. Delay of 30 days in refiling the appeal is condoned.

2. This appeal has been filed by the husband against the judgment and decree dated 15.4.2014 passed by the District Judge, Family Court, Ambala whereby the petition under Section 13 of the Hindu Marriage Act, 1955 (in short "the Act") filed by the wife for dissolution of marriage by a decree of divorce on the ground of cruelty, was allowed.

3. A few facts necessary for adjudication of the instant appeal as narrated therein are that the marriage between the parties was solemnized on 23.6.2004 according to Hindu rites and ceremonies at Ambala Cantonment. After the marriage, the parties lived together as husband and wife and cohabited as such but no child was born out of the said wedlock. The appellant took the respondent to Mata Vaishno GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh Devi Temple. Thereafter, the respondent went to Ambala Cantonment to attend the marriage of her brother and after that she never turned up to the matrimonial home and deserted the appellant without any cause. The appellant tired his best level to bring the respondent back but she refused to accompany him. However, the respondent filed a petition under Section 13 of the Act for dissolution of marriage on the ground of cruelty and desertion. The said petition was contested by the appellant by filing written statement. The averments made in the petition were controverted by the appellant and prayer for dismissal of the petition was made. From the pleadings of the parties, the trial court framed the following issues:-

1. Whether the petitioner is entitled to a decree of divorce u/s 13 of HMA on the grounds pleaded in the petition? OPP

2. Whether the petitioner is estopped by her own act and conduct to file and maintain the present petition? OPR

3. Relief.

4. The trial court on appreciation of evidence led by the parties, decided issue No.1 in favour of the respondent holding that the respondent was entitled to a decree of divorce on the grounds pleaded in her petition. It was further observed that vide order dated 24.4.2013, it was held that the wife was entitled to ` 1500/- per month as maintenance pendente lite from the date of application filed under Section 24 of the Act, besides litigation expenses of ` 7500/- which had not been paid by the husband inspite of availing several opportunities to do so. As a consequence on 24.2.2014, the trial court had struck off the GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh defence of the husband. Accordingly, the trial court vide judgment dated 15.4.2014 passed the decree in favour of the respondent-wife dissolving the marriage between the parties. Hence, the present appeal.

5. Learned counsel for the appellant submitted that the trial court had wrongly struck off the defence of the appellant due to non- payment of maintenance as he was ready to keep the respondent with him. Learned counsel further submitted that for non-payment of interim maintenance, the respondent would have to file execution petition. It was next submitted that the appellant never treated the wife with cruelty and false allegations were levelled by the respondent-wife.

6. The twin issue that arises for consideration in this appeal is summarized as under:-

(i) Whether the trial court was justified in striking off the defence of the appellant for non-payment of interim maintenance?

(ii) Whether the appellant had treated the respondent-

7. After hearing learned counsel for the appellant, we do not find any merit in the appeal. Taking up first issue, it would be expedient to refer to Section 24 of the Act which reads thus:-

"24. Maintenance pendente lite and expenses of proceedings-. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be."

8. Section 24 of the Act empowers the matrimonial court to award maintenance pendente lite and also litigation expenses to a needy and indigent spouse so that the proceedings can be conducted without any hardship on his or her part. The proceedings under this Section are summary in nature and confers a substantial right on the applicant during the pendency of the proceedings. . Where this amount is not paid to the applicant, then the very object and purpose of this provision stands defeated. No doubt, remedy of execution of decree or order passed by the matrimonial court is available under Section 28A of the Act, but the same would not be a bar to striking off the defence of the spouse who violates the interim order of maintenance and litigation expenses passed by the said Court. In other words, the striking off the defence of the spouse not honouring the court's interim order is the instant relief to the needy one instead of waiting endlessly till its execution under Section 28A of the Act. Where the spouse who is to pay maintenance fails to discharge the liability, the other spouse cannot be forced to adopt time consuming execution proceedings for realising GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh the amount. Court cannot be a mute spectator watching flagrant disobedience of the interim orders passed by it showing its helplessness in its instant implementation. It would, thus, be appropriate even in the absence of any specific provision to that effect in the Act, to strike off the defence of the erring spouse in exercise of its inherent power under Section 151 of the Code of Civil Procedure read with Section 21 of the Act rather than to leave the aggrieved party to seek its enforcement through execution as execution is a long and arduous procedure. Needless to say, the remedy under Section 28A of the Act regarding execution of decree or interim order does not stand obliterated or extinguished by striking off the defence of the defaulting spouse. Thus, where the spouse who is directed to pay the maintenance and litigation expenses, the legal consequences for its non-payment are that the defence of the said spouse is liable to be struck off.

9. The Madras High Court in Narayana Nadar v. Jayakodi Ammal 1990(1) DMC 596 dealing with similar situation had noticed as under:-

"The purpose behind Section 24 of the Act is that parties to a matrimonial case should not take undue and unfair advantage of a superior financial capacity, to defeat the rightful claims of a weaker party. The proceedings under Section 24 of the Act serve a limited purpose, i.e. during the pendency of the proceedings to enable the weaker party to establish rights without being in any manner hindered in that attempt by lack of financial support. It is true that Section 28A of the Act provides for the enforcement of GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh orders of execution; but the process of such execution is a long and arduous one and if execution is to be considered the only method of enforcement, the matrimonial proceedings have to be stayed till the execution is completed. To put it differently, to secure the benefit of an order under Section 24 of the Act by resort to the process of execution, the parties may have to endure, in some cases at least, an endless wait. The enforcement by execution would not also further the objects of the Act. Matrimonial proceedings should be dealt with expeditiously and relief afforded to the parties."

10. Concurring with the aforesaid view and following the pronouncement of Calcutta High Court in Anita Karmokar v. Birendra Chandra Karmokar, AIR 1962 Cal. 88, Andhra Pradesh High Court in Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shyamala, 1990(II) DMC 486 and this Court in Ram Swaroop v. Janak, AIR 1973 P&H 40, the Kerala High Court in C.S. Mangalam v. Velayaudhan Asari, AIR 1993 Kerala 181 had opined as under:-

"7. In the light of the above decisions, I hold that the order passed by the learned Subordinate Judge in I.A. No. 3603 of 1991 dated 7-11-1991 is clearly illegal and perverse. The court below had inherent jurisdiction under Section 151 of the Civil P.C. to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the court below would have GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. Instead of exercising the jurisdiction so vested in the court, the lower court has thrown its hands in despair and has offered a gratuitous legal opinion to the revision petitioner to file an execution petition, which, as stated by Banerjee, J. in Anita Karmokar's case AIR 1962 Cal 88, is not an easy going highway, and is beset with all imponderables and practical difficulties."

11. Where the maintenance pendente lite was not paid in pursuance to an order passed under the Act, this Court in Krishan Kumar v. Monika Grover 2011(6) RCR (Civil) 121 held that the erring spouse was disentitled to be heard on merits for disobeying the order of the court with the following observations:-

"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 Civil Procedure Code 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 GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh 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 in Smt. Swarno Devi v. Piara Ram, 1975 HLR 15; Gurdev Kaur v. Dalip Singh, 1980 HLR 240; Smt. Surinder Kaur v. Baldev Singh, 1980 HLR 514; Sheela Devi v. Madan Lal, 1981 HLR 126 and Sumrati Devi v. Jai Parkash, 1985(1) HLR 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."

GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh

12. Similar view has also been expressed by this Court in Asha Rani v. Yash Pal 1993(1) HLR 30, Kanti Devi v. Balbir Singh 1990(1) HLR 32, Gurjeet Kaur alias Guddi v. Amar Singh 1997(1) HLR 429 and Santosh v. Balwinder Kumar 1997(1) HLR 463.

13. The trial court while rejecting the contentions of the appellant held that no doubt the order directing payment of interim maintenance can be enforced by taking recourse to an execution proceedings which also does not preclude the court to enforce its own order so as to prevent the abuse of the process of court. Thus, the defence struck off vide order dated 24.2.2014 by the trial court for non- compliance of order of maintenance pendente lite dated 24.4.2013 was justified and the trial court had rightly ignored the defence of the appellant.

14. Examining the second issue, it may be noticed that the trial court held that there were differences between the parties and the respondent-wife was not interested to live with the appellant-husband as he had treated her with mental cruelty. The trial court while passing a decree of divorce in favour of the respondent-wife had concluded as under:-

"The married life should be reviewed as a whole. The relationship between the parties has deteriorated to an extent because of the acts and behaviour of the respondent that petitioner finds it extremely difficult to live with the respondent as is clear from the evidence that petitioner has straightway refused to live with the respondent. Taking into consideration the aforementioned facts there is no possibility of their GURBACHAN SINGH 2014.12.22 12:39 I attest to the accuracy and authenticity of this document High Court Chandigarh living together, the irresistible conclusion would be that the matrimonial bond has been ruptured beyond repair because of mental cruelty caused by the respondent. In view of my above discussion, it is held that the petitioner has been able to prove that she is entitled to a decree of divorce on the grounds as pleaded in her petition."

15. The findings recorded by the trial court have not be shown to be erroneous or perverse in any manner which may warrant interference by this Court. Consequently, finding no merit in the instant appeal, the same is hereby dismissed.

16. Since the appeal has been dismissed on merits, no order on application bearing CM No. 18968-CII of 2014 seeking condonation of 60 days' delay in filing the appeal is being passed and the said application is disposed of as such.