- (1.) IKRAM-ul-Bari, J. In this appeal judgment and order dated 14-1-93 passed by Principal Judge, Family Court, Luck-now is under challenge.
(2.) BY judgment and order under ap peal the marriage of the appellant with the respondent was annulled on the ground that the respondent is impotent and not able to consummate the marriage. From reading of the judgment under appeal it is gathered that the mar riage between the parties had taken place on 23-2-90. The wife, the respondent had lived with the appellant for quite some time. The appellant during that period did not share the bed with the respondent and refused to cohabit with her on one or the other pretext. The marriage could not be consummated. The appellant admitted the fact of his impotence before the respon dent and her brother-in-law and her sister. The respondent to this appeal moved an application under Section 24 of the Hindu Marriage Act for alimony and litigation expenses and the litigation expenses of Rs. 500 are deposited the execution of order dated 19-2-92 passed by the Family Court shall remain stayed. The Hon'ble Court had also directed that the petitioner may be represented through his attorney. Till 2-12-92 neither interim alimony nor litiga tion expenses were paid and therefore, the defence of the appellant was struck off. On 14-1-93 the attorney of the appellant moved an application intimating the Family Court that the alimony and litiga tion expenses had been deposited in the High Court on 13-1-93 and requested for recall of the order dated 2-12-92 striking off the defence of the appellant. The ap plication was rejected on the same day. The respondent then expressed her desire of adducing evidence on affidavits and moved an application to that effect. She was permitted by the Court and she filed her own affidavit and the affidavits of her brother-in-law and her sister. The affidavits were not controverted. The evidence so produced was relied upon by the Family Court and finding was recorded that the appellant was impotent and incapable of sexual inter course at the time of marriage and continues to be so and the marriage has not been consummated. The suit for annulment of marriage was decreed. From the judgment and order under appeal it is evident that the appel lant has been directed by the Family Court at some time to pay interim alimony to the respondent @ Rs. 500 per month and also to pay her Rs. 500 as litigation expenses. The appellant did not abide by that order and filed writ petition No. 2621 of 1992. This Court directed the appellant on 12-11-92 to make the payment and only then the execution of order dated 19- 2-92 will remain stayed. From the statements in the memo of appeal it appears that dates of hearing in the divorce petition were fixed and hearing was adjourned from time to time on the request of attorney of appel lant. On 19-9-92 such request for adjourn ment was refused and it was directed that the hearing shall proceed ex pane. This order was challenged in writ petition No. 2621 of 92. Thereafter 2-12-92 was fixed for the hearing of the case on the ad journed date. The attorney of the appel lant had requested for time to deposit the money. He had also moved for adjournment of the hearing. That prayer was rejected and an order striking off the defence for non- payment of the interim alimony and the litigation expenses was passed and 14-1- 93 was fixed for ex pane hearing. On 14-1-93 application for recall of order dated 2-12-92 was moved but it was dismissed on the ground that the pay ment had not been made to the respondent but had been deposited in the High Court and therefore, it will not be deemed to be a payment made to the respondent.
(3.) THE appellant had not claimed that the deposit had been made within time. He has tried to explain the delay in deposit. THE delay was however, explained only in the application for recalling the order dated 2-12-92 by which appellant's defence has been struck off. THE Family Court did not find the explanation for the delay ade quate and refused to recall the order dated 2-12-92. THE appellant has not prayed for setting aside of the order dated 2- 12-92 and has also not filed a copy thereof. THE order dated 2-12-92 has been mentioned in this appeal only as the ground that it was arbitrary, illegal and unjustified. When the order dated 2-12-92 was passed, it was the date for final hearing in the case and the Court had before it only the circumstance that the amount of interim alimony and the expenses of litigation had not been deposited or paid in accordance with its own order as well as the order of this Court. An argument was raised that the Family Court had no jurisdiction to strike off the defence of the appellant. This argu ment is misconceived for two reasons. THE first reason is that Section 10 of the Family Court Act has made provisions of the Code of Civil Procedure, 1908 generally ap plicable to the proceedings before the Family Court. THE Act and the rules do not prohibit the use of the provisions of Civil Procedure Code relating to striking off the defence. THE second reason is that a Court has inherent jurisdiction to strike off the defence if its orders necessary for the progress of the case before it are not com plied with by the defendant. It is, therefore, not acceptable that the Family Court had no jurisdiction to pass order dated 2-12-92 whereby the appellant's defence was struck off. No arbitrariness is reflected in the passing of the order dated 2-12-92. THE order cannot be said to be unjustified by any stretch of imagination. On 14-1-93 the order dated 2-12-92 striking off the defence of the appellant was in act and the Court had to proceed with the case before it accordingly. After the rejection of the application of the appellant for recall of the order dated 2-12-92 the Court had to proceed to hear the case ex pane. On the request of the respondent the Court per mitted the production of evidence by the respondent in the form of affidavits. THE appellant or his attorney never made any request for permission to cross-examine the three witnesses whose evidence had been filed by the respondents on 14-1-93, the date of. hearing. THE appellant had a legal right to cross-examine the witnesses and to address the Court regarding the merit of the evidence of the respondent even though he was prevented from put ting forth any defence and producing any evidence in support of the defence. Since the evidence of the respondent remained unrebutted and unquestioned, the Family Court was justified in evaluating it in isola tion. THE Court found the evidence sufficient to record the finding that the appel lant was impotent and incapable of per forming intercourse. No effort has been made on the part of the appellant to show that the statement in the affidavits were deficient with regard to the fact found by the Family Court. Argument on behalf of the appel lant is that the stay of the respondent with the appellant was only for a week and under these circumstances the Family Court should not have accepted the state ment of the respondent and her witnesses with regard to the material fact. This argu ment is without any merit as the fact had to be found out on the basis of preponderance of evidence before the Family Court. No particular type of evidence was required by law to prove the fact.;