S.S.SARON, J. - (1.) THE appellant -wife (Sheela Devi) had filed a petition under Section 13 of the Hindu Marriage, Act 1955 (for short 'the Act') for grant of divorce on the ground that the respondent -husband (Gurmukh Singh) had treated her with cruelty.
(2.) THE learned Additional District Judge, Yamunanagar vide his judgment and decree dated 03.12.2007 dismissed the petition of the appellant -wife. Aggrieved against the same, Sheela Devi (appellant -wife) has filed the present appeal in this Court. Sheela Devi (appellant -wife) also filed C.M. No.140 -M of 2008 under Section 24 of the Act for grant of maintenance pendente -lite and litigation expenses. The said civil miscellaneous application was disposed of by this Court on 20.05.2009 with the direction that the respondent -husband shall pay maintenance pendente -lite at the rate of Rs. 2,000/ - per month with effect from the date of filing of the application and Rs. 5,500/ - as litigation expenses. The amount payable, it was held, shall be inclusive of the amount awarded in proceedings under Section 125 of the Code of Criminal Procedure. The appellant -wife thereafter filed civil miscellaneous No.20042 -CII of 2010 for directing the respondent to pay the amount of maintenance pendente -lite and litigation expenses granted by this Court in terms of order dated 20.05.2009. On 22.02.2011, in response to a contention raised by the learned counsel for the appellant that no amount of maintenance has been paid, learned counsel for the respondent -husband stated that he was not in a position to pay any maintenance. The case was adjourned to 18.04.2011 on the entitlement of the appellant to have the decree annulled on the only ground that maintenance had not been paid. The case was taken up on 18.04.2011 and was adjourned to 13.05.2011. On 13.05.2011, it was adjourned for today. Learned counsel for the respondent has today again reiterated that the respondent -husband is not in a position to pay the maintenance amount.
(3.) IN the circumstances, it is to be considered, whether the appeal filed by the appellant -wife is liable to be allowed. This Court in the case of Shanti Devi versus Sham Lal, 1994 (1) H.L.R. 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 versus Piara Ram, 1975 H.L.R. 15, wherein it was held that on the failure of the husband to make payment of maintenance, his defence could be struck down. 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 versus Lachhman Singh, 1977 H.L.R. 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 versus Ram Kumar, 1977 (2) P.L.R. 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 Act was filed for grant of interim maintenance, which was fixed ex parte at the rate of Rs. 750/ - per month. The arrears were ordered to be paid within two months. On failure to pay the maintenance, it was held that the defence of the husband is to be struck down and allegations levelled against him regarding the cruelty meted out to the wife, are to be taken as correct and established.;