SUNDER Vs. REKHA

JUDGEMENT

(1.) EVEN on repeated calls none appears on behalf of the respondents in spite of notice by registered post as well as by dasti summons and despite putting in appearance through Sri Ashwini Srivastava, learned advocate of this Court to whom also written notice has been given. On 13th April, 2009, we have passed an order to that effect. The relevant part is as follows: "We make it clear that in case of failure on the part of the respondents in appearing on the returnable date in spite of service, Court will be compelled to proceed in their absence." We have heard learned counsel appearing for the appellant and gone through the judgment and order passed by learned Judge, Family Court Meerut, dated 30th March, 2009 fixing alimony of Rs 3000/- per month to be paid to the respondent/wife, an amount of Rs. 6000/- as counsel's fee & litigation expenses as well as Rs. 100/- per date as expenses for attending the court. In spite of such order when she has not responded to protect her own interest, the Court has no option but to believe that the respondent is not diligent. Furthermore, there is allegation of extramarital relationship with her own elder brother-in-law, which has been admitted by the respondent in the proceeding under Section 125 of the Code of Criminal Procedure which has also been heard on the same day along with application under Section 24 of Hindu Marriage Act. Although the payment of maintenance pendentelite appears to be as a matter of course but there are some exceptional situations. The first exceptional situation is diligence of wife who claims maintenance pendentelite and second is appropriate consideration of means to maintain the wife and in case of necessity, to maintain the children. In the instant case, the children are staying with the husband/appellant herein. He is a cobbler. He has already said that his monthly income is Rs. 1,500/-. Therefore, when conduct of the wife along with reluctance to appear in the Court coupled with affirmation of the statement of extra-merital relationship are available to us, we cannot hold good to pass any order in favour of the wife at this juncture. Hence, we set aside the order impugned and remand the same for the purpose of reconsideration provided the wife upon putting her appearance proves her diligence and necessity for the purpose of getting the maintenance pendentelite in the aforesaid circumstances. Therefore, with the above observation and order, the appeal is allowed at the stage of admission, however, without imposing any cost.