SUKHWINDER KAUR Vs. HARNEK SINGH

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the trial court dt. May 13, 1986, whereby the petition filed under S. 13 of the Hindu Marriage Act, (hereinafter called the Act), by the wife, was dismissed.

(2.) DURING the pendency of this appeal, application under S. 24 of the Act, was filed for the grant of maintenance pendente lite and litigation expenses by the wife. Vide order dt. May 21, 1987, this Court granted a sum of Rs. 125/- per mensem as maintenance with effect from the presentation of the application and a sum of Rs. 600 as litigation expenses. The learned counsel for the respondent husband stated at the bar that the husband was not prepared to pay the said maintenance and the litigation expenses as he was unable to pay the same. On this statement made by the learned counsel for the husband, the learned counsel for the appellant-wife submitted that her appeal should be accepted on this ground alone and a decree for divorce be passed in her favour. Reliance in support of the contention was placed on Smt. Banso v. Shri Sarwan, 1978 Hindu LR 2s1 (Punj and Har) and Ram Swaroop v. Smt. Janak (1972) 74 Pun LR 933 : (AIR 1973 Punjab 40 ). A reference was also made by the learned counsel to F. A. O. No. 70-M of 1973 (Surinder Kumar v. Smt. Sharda Rani), decided on Aug. 25, 1975.

(3.) THE proposition of law, as laid down in the abovesaid rulings is not disputed. However, in the present case, the original petition for the grant of a decree for divorce was filed by the wife herself which was dismissed by the trial Court on merits. In the appeal filed by her, she moved the application under S. 24 of the Act, which was allowed, but the husband did not pay the maintenance as ordered. Even if his defence is struck off the appeal could not be allowed on that ground alone unless the court is satisfied on merits of the claim made by the wife in her divorce petition. None of the judgments, referred to above, deals with this question as such, nor it was ever raised therein. The position would have been different if the original petition was filed by the husband and the same was either allowed or dismissed and the appeal was filed by either party w was not complying with this court order therein. In case, this court order under S. 24 of the Act, was not complied with, by the husband, the appeal filed by him could dismissed by this court, but since the original petition was filed by the wife and the same was dismissed by the trial court, in appeal it would not be allowed simply on the ground that no maintenance was paid by the husband in pursuance of the order under S. 24 of the Act. In these circumstances, the appellant was called upon to satisfy this court on merits.