EKTA Vs. BEJINDER KUMAR

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside impugned order dated 17.3.2017 (Annexure P-2) passed by Additional District Judge, Chandigarh, whereby, the judgment of trial Court has been set aside on the ground of non-payment of arrears of maintenance and appeal filed by respondent-husband has been allowed by remanding the case to the trial Court to lead evidence.

(2.) Briefly, the facts of the case as made out in the present petition, are that the respondent-husband filed a petition under Section 13(i) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') for grant of divorce on the ground of cruelty. During pendency of the divorce petition, an application under Section 24 of the Act for grant of maintenance was filed by the petitioner-wife, which was allowed and amount of Rs. 5000/- was granted as maintenance. Respondent-husband failed to make payment of maintenance to the petitioner and as such the petition for grant of divorce was dismissed on the ground of non-payment of maintenance. Said order was challenged by way of filing FAO No. M-184 of 2015, wherein, the impugned order was set aside and the respondent-husband was directed to pay the arrears of maintenance as ordered by the trial Court and the matter was remanded to the trial Court to afford an opportunity to both the parties to plead and contest the case through their respective counsel and thereafter decide it on merits. Thereafter, inspite of availing various opportunities, the petitioner did not conclude her evidence and ultimately her evidence was closed by the order of the Court on 17.3.2017, which is subject matter of challenge in the present petition.

(3.) Learned counsel for the petitioner contends that the petitioner could not appear before the trial Court on 27.2.2017 and 3.3.2017 due to her ailment but on 17.3.2017 she was present and the evidence of two witnesses was also prepared after getting their affidavits attested, which was to be tendered before the Court. When the petitioner went to the Court to tender their affidavits by way of evidence at 2.00 pm, she came to know that the Presiding Officer was on half day leave and order has already been passed in the case. Learned counsel also submits that non-appearance of the petitioner was neither intentional nor wilful but due to the circumstances, which were beyond her reach. Learned counsel further submits that one effective opportunity be granted to her to conclude the entire evidence and the petitioner is ready to compensate the opposite party in monetary terms and no prejudice will be caused to the party opposite.