VINAY KUMAR RASTOGI Vs. NANDITA RASTOGI

JUDGEMENT

(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.

(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.