MANGALAM Vs. VELAYUDHAN ASARI

JUDGEMENT

(1.) The petitioner in I.A.No.3603 of 1991 in O.P. (H.M.A.) No.379 of 1987, II Addl. Sub Court, Thiruvananthapuram, is the petitioner herein. The counter petitioner in the said proceedings is the respondent in this revision. The revision petitioner filed a petition against the respondent for divorce, under S.13 of the Hindu Marriage Act The petition was filed as early as 11-11-1987. The divorce was sought on the ground of cruelty. Pendente lite, the petitioner (wife) filed I.A.No.880 of 1989, for directing the counter petitioner (husband) to pay maintenance at the rate of Rs.300/- per mensem and Rs.500/- towards the litigation expenses. The court below ordered the petition, as prayed for. In C.R.P.No.568 of 1991, this court modified the order, by directing the respondent counter petitioner (husband) to pay an amount of Rs.200/- per mensem towards maintenance and Rs.500/- towards the litigation expenses. A sum of Rs.6,300/- was due on the date of filing I.A.No.3603 of 1991. The respondent deliberately committed default in payment. It was so done without bona fides. A sum ofRs.1,100/- was paid subsequently, leaving a balance of Rs.5,200/-. The order passed by the court below, as modified by this Court in C.R.P.No.568 of 1991, has not been complied with by the respondent. Stating that the respondent is deliberately flouting the orders passed by the court, the petitioner filed I.A.No.3603 of 1991 praying that the court may strike of the defence, since it is evident that the respondent is wilfully committing default in payment of the amounts ordered by the court, and in consequence, to pass a decree for divorce. The respondent did not file an objection.

(2.) The court below heard the matter and took the view that under the Hindu Marriage Act, there is no provision for striking off the defence, in case any one of the parties flouts the orders of the court. It was further held that S.151 of the Code of Civil Procedure cannot be called in aid to strike off the defence. It is open to the wife (revision petitioner) to realise the amount by filing execution petition. The court below took the view that the mere fact that the counter petitioner failed to pay the arrears of maintenance and did so even wilfully and without bona fides, cannot be a ground to strike off the defence. It is against the said order passed by the court below in I.A. No. 3603 of 1991 dated 7-11-1991, the petitioner in the court below has come up in revision.

(3.) I heard counsel.