SUMAN BALA Vs. O P ARORA

JUDGEMENT

(1.) This revision petition is directed against an order partly dismissing the application by disallowing maintenance with effect from 3rd May 1977 till 18th September 1980, the date of decree for divorce.

(2.) The learned Additional District Judge passed the impugned order on the ground that on 2nd May 1977 the case of the husband for restitution of conjugal rights was adjourned sine die on account of non-compliance of the order dated 22nd March 1977 to pay maintenance and litigation expenses. The case of the petitioner for restitution of conjugal rights remained pending. Only counter claim of the Decree Holder seeking divorce was revived and divorce decree was passed on 18th September 1980. Since, the defence of the Judgment Debtor/husband was struck off, he could not be penalised (twice?) by recovery of maintenance in respect of the same period (during which he was not allowed to prosecute his defence and case for restitution of conjugal rights under Section 97th of the Hindu Marriage Act).

(3.) To further appreciate the points involved in the matter, before proceeding further, it would be desirable to have a glance at the facts of the case. These are as under: 3.1 The marriage of the couple took place on 2nd March 1975. On 14th June 1976, a daughter was born. That created some problems and the revision petitioner was forced to leave. The husband/respondent filed a petition for restitution of conjugal rights on 19th January 1977. On 17th February 1977 the petitioner/wife contested the claim for conjugal rights filed written statement and she instead claimed divorce. On that very date, she moved an application under Section 24 for litigation expenses and maintenance. On 22nd March 1977 Shri K.B. Andley, the then Additional District Judge awarded maintenance at the rate of Rs. 300 per month along with litigation expenses amounting to Rs. 750. On account of non-payment of maintenance, the proceedings in that matter were stayed on 2nd May 1977 sine die. The petitioner/wife had not filed any application separately for grant of maintenance in her counter claim for divorce. 3.2 The petitioner/wife moved an application for revival of her counter claim and the application was allowed on 1st February 1980. An application for striking off the defence of the husband in the counter claim and the petition for divorce of the wife was allowed on 12th August 1980. On 18th September 1980, a decree of divorce was passed. 3.3. The first appeal against the decree of divorce was filed but that appeal is said to have been dismissed on 10th November 1980. On 9th March 1981 Special Leave Petition filed before the Supreme Court against the order of dismissal of appeal by the High Court was also dismissed. 3.4 On 18th March 1981 the petitioner/wife moved an application for execution of the order under Section 24 of the Hindu Marriage Act. The learned Additional District Judge by impugned order dated 9th November 1981 allowed the claim of maintenance only for the period from 12th February 1972 till 2nd May 1977 alongwith litigation expenditure of Rs. 750. The claim of the petitioner/wife for an amount relating to period from 3rd May 1977 till 18th September 1980 has been dismissed. 3.5 Feeling aggrieved by the abovesaid order this CM(M) has been filed inter alia on the ground that the view taken by the learned Additional District Judge was not justified. It did not amount to double penalty. The order of striking off the defence was passed for the contumacious conduct of the respondent in not paying the expenses land maintenance pendent lite, and it did not absolve the husband/respondent from paying the said amount. The purpose for staying the proceedings was just to ensure the payment.