SUNITA Vs. RAM PAL

JUDGEMENT

(1.) THIS application has been filed under Section 151 C.P.C. with a prayer to strike off the defence of the respondent-husband on account of his failure to pay maintenance pendente lite every month in pursuant to order dated February 22, 2001 passed in C.M. No. 75-M of 1998. It is averred that the maintenance has been paid upto September 15, 2001 but thereafter the respondent has stopped making payment in pursuant to the aforesaid order.

(2.) LEARNED counsel for the applicant has argued that in view of the law laid down by this Court, in the event of non-compliance of such aforesaid order, the defence of the respondent deserves to be struck off. It has been argued that this Court can exercise inherent powers under Section 151 C.P.C. to enforce the orders passed by this Court and can also strike off defence for non-compliance. Reference has been made to a Single Bench judgment of this Court in re : Shri Ram Swaroop Amritsar v. Smt. Janak w/o Shri Ram Swaroop, AIR 1973 Punjab and Haryana 40 and in re : Ram Narain v. Smt. Daropdi Devi and another, AIR 1983 Delhi 346. In the aforesaid decisions, the appeal of the appellant had been dismissed for not making compliance of the order passed under Section 24 of the Hindu Marriage Act. However, in both the cases, reference has not been made to Section 28-A of the Hindu Marriage Act which was incorporated by way of amendment enforced on May 27, 1976, wherein, it has been provided that every order passed by the Court is executable like a decree. If a specific provision is available for seeking execution of the order, no such situation arises for invocation of the inherent powers of the Court under Section 151 C.P.C. Reference has also been made to a judgment of Rajasthan High Court in re : Bhanwar Lal v. Smt. Kamla Devi, AIR 1983 Rajasthan 229. I am afraid this judgment is not applicable to the case at hand as the question which had arisen in the aforesaid case is : Could the Court pass an order regarding payment of arrears of interim maintenance after the petition for divorce filed by the husband is conditionally withdrawn ? However, a reference has been made to the amended provision i.e. Section 28-A of the Hindu Marriage Act and it has been categorically observed that by virtue of the aforesaid provision any order passed under Section 24 of the Act can be enforced as a money decree and the question of striking off defence was not required to be resorted to. An observation has been made that in the given circumstances of the case, the Court may pass an order for striking off the defence of the defaulting party or dismiss the main petition but only in the eventuality when the order cannot be enforced or executed in pursuant to Section 28-A of the Act. The Hon'ble Judge dissented from the judgment rendered by this Court in Shri Ram Swaroop's case (supra). It is not appreciated that the counsel has not even examined the effect of the aforesaid judgments but has placed reliance thereon.

(3.) THE applicant has not filed any execution application as envisaged under Section 28-A of the Act, thus, non-compliance of the order is not discernible. Thus, striking of defence is an extreme penal step which is being asked to be taken. I am afraid, perusal of the facts of this case, the circumstances do not warrant striking off the defence. Admittedly, the husband has paid maintenance pendente lite upto September 15, 2001. Thus, the remedy by way of seeking execution of the order under Section 28-A of the Act, is available.