S.N. Aggarwal, J.@mdashThe question that we need to answer in this appeal has been referred to us by brother Sodhi, J who on 04.08.2004
when the matter came for hearing before him passed the following order:
Vide order dated 6th May 2004, Hon''ble Mr. Justice Madan B. Lokur has expressed his dissent against the judgment in Bani Vs. Parkash Singh,
which appears to have been followed by a judgment of this Court in P. Srinivasa Rao Vs. P. Indira and Another, . In this view of the matter, it
would be appropriate that this matter is referred to a Larger Bench. List this matter before the Larger Bench.
2. We have seen the order dated 06.05.2004 of brother Lokur, J and we find no crystallized dissent in the said order that there is no prestige
descent against the judgment in Bani''s case (Supra). Faced with this situation, we have two options before us, either to answer the reference
ourselves or to remand the case back to the learned Single Judge for decision of the appeal in accordance with law. We prefer to follow the
former as it would advance the cause of justice and would save the parties botheration of on going litigation.
3. The question referred before us is whether the appeal against the decree of divorce filed by the appellant-wife can be allowed straightway
without hearing the respondent-husband in the event of his failing to pay interim maintenance and litigation expenses granted to the wife during the
pendency of the appeal.
4. The question we are confronted with has not arisen for the first time but the said question has already been examined in number of cases not
only by Delhi High Court but also by other High courts. In this context, it would be significant to refer to para 7 of the judgment in Bani''s case
(Supra) which is reproduced here-in-below:
No doubt, wife can file a petition under Order 21 Rule 37 CPC 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 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
Realizing 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 defense can be struck out. No doubt,
in this appeal he is respondent. His defense is contained in his petition filed u/s 13 of the Act. in a plethora of decisions of this Court 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 Sumarti 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 defense is to be struck out. The consequence is that the appeal is to be allowed and his petition u/s 13 of the Act
is to be dismissed.
5. The reference to the portion of the judgment in Bani''s case extracted here-in-above would show that the Punjab and Haryana High Court and
Orissa High Court have taken an unanimous view that in case the husband commits default in payment of interim maintenance to his wife and
children then he is not entitled to any matrimonial relief in proceedings by or against him. The view taken by Punjab and Haryana High Court in
Bani''s case has been followed by a Single Judge of this Court in P. Srinivasa Rao Vs. P. Indira and Another, . We tend to agree with this view as
it is in consonance with the first principle of law. We are of the view that when a husband is negligent and does not pay maintenance to his wife as
awarded by the Court, then how such a person is entitled to the relief claimed by him in the matrimonial proceedings. We have no hesitation in
holding that in case the husband fails to pay maintenance and litigation expenses to his wife granted by the Court during the pendency of the appeal,
then the appeal filed by the wife against the decree of divorce granted by the trial court in favor of the husband has to be allowed. Hence the
question referred to us for decision is answered in the affirmative.
6. For application of the above rule, it may be necessary to give a brief background of the present case and the same is as under:
7. The appellant is the wife. She was married to the respondent-husband according to Hindu rites and ceremonies at Lajpat Nagar on 26.03.1982.
Two daughters were born to the parties from their wedlock. They are Ms. Veena and Ms. Kanu. There were disputes and differences between
the couple since beginning of their marriage. They separated from each other on 25.07.1986 and ever since then they are living separate from each
other. Both the daughters born to the parties from their wedlock are presently in the custody of the mother, appellant herein. The respondent
(husband) had filed a petition for divorce against the appellant on the ground of cruelty and desertion u/s 13(1)(ia) and (ib) of the Hindu Marriage
Act, 1955. Shri M.C. Garg, then Additional District Judge, Delhi vide judgment and decree dated 02.03.1998 allowed the petition of the husband
and dissolved the marriage of the parties. During the pendency of this appeal, vide order dated 25.11.1999, the appellant was granted an interim
maintenance at Rs. 1,000/- per month for the maintenance and education of her two daughters. The respondent admittedly did not pay any
maintenance to the appellant till date despite order was passed in this regard on 25.11.1999. He is thus a contumacious defaulter. The counsel for
the respondent-husband has very fairly conceded before us at the time of hearing of this appeal that since her client has no money to pay
maintenance to the appellant, the Court may allow the appeal of the appellant. Even otherwise we are of the view that since the respondent has not
complied with the order of payment of maintenance passed by this Court on 25.11.1999, his defense is liable to be struck down and consequent
thereto the appeal of the appellant has to be allowed.
8. In view of the above, the impugned judgment and decree is hereby set aside. This appeal is allowed. No costs.
