ANUPAMA ALIAS CHARANJIT KAUR Vs. ASHWANI KUMAR

JUDGEMENT

(1.) In this appeal, Anupama @ Charanjit Kaur is challenging two orders; (1) ex-parte judgment and decree dated 5.5.1992 dissolving the marriage by a decree of divorce on a petition under Sec. 3 of the Hindu Marriage Act filed by husband, Ashwani Kumar (respondent herein), and (2) order dated 18.5.1996 whereby application filed by Anupama under Order 9 Rule 13, Civil Procedure Code, for setting aside ex-parte judgment and decree dated 5.5.1992 has been dismissed.

(2.) During the pendency of the appeal, appellant, Anupama, filed application under Sec. 24 of the Hindu Marriage Act for grant of maintenance pendente-lite and litigation expenses. Upon contest by the respondent-husband, vide order dated 9.1.1998 application was allowed and respondent was directed to pay Rs. 700.00 per month as interim maintenance from the date of application and Rs. 4000.00 as litigation expenses. Subsequently, appellant filed an application, C.M. No. 1192-C of 2000 stating that since the passing of order dated 9.1.1998 she has been paid only Rs. 4900.00 and thereafter, respondent has failed to pay her the remaining amount of maintenance from March, 1998 onwards. Upon notice of the said application, respondent in his reply did not deny this fact but stated that he could not make payment of maintenance because he has been suffering from sever Psychotic depressive (M.B.P.) Depressed. He stated that he is incapable to earn anything and as such, he cannot make the payment. The submissions made in the reply were not accepted by this Court and thus counsel for the respondent took time to seek instructions from his client with regard to making of payment. At his request, the case was adjourned from time to time and more than six adjournments have been granted for this purpose but till date, payment of maintenance has not been made. Today, counsel for respondent stated that respondent is not in a position to make the payment. In Smt. Santosh Vs. Hari Singh, 1985(2) HLR-557 and Smt. Salochana Rani Vs. Tarsem, 1983 HLR-510 , this Court has held that the effect of non-compliance of the orders passed under Sec. 24 of the Hindu Marriage Act granting maintenance pendente-lite to the wife has the result that the defence of the husband has to be struck off. In this case also, vide order dated 9.1.1998 the respondent was directed to pay Rs. 700.00 per month towards maintance to the wife and he having not paid the same. I have no alternative but no strike off his defence put up by him to contest the application under Order 9, Rule 13 , Civil Procedure Code, for setting aside ex parte judgment and decree dated 5.5.1992.

(3.) With the striking off the defence of respondent-husband, application under Order 9 Rule 13, Civil Procedure Code, is to be allowed and it is so ordered. Accordingly, order dated 18.5.1996 passed by trial Court dismissing application under Order 9 Rule 13, Civil Procedure Code, is set aside. As a consequence thereof, ex-parte judgment and decree dated 5.5.1992 too shall stand set aside.