SANGRAM SINGH Vs. DAULAT KUMARI

JUDGEMENT

(1.) On September 1, 1965 respondent wife moved an application for judicial separation under the Hindu Marriage Act against the appellant husband. The Court framed the following issues: - -

(2.) The District Judge by his order dated 25 -8 -70 found both the issues in favour of the wife, During the pendency of the petition he wife had moved an application on December 9, 1967 for payment of permanent alimony The District Judge while passing his order dated 25 -8 -1970 also fixed Rs. 750/. per month as maintenance for the wife for life while she remains unmarried. The husband filed an appeal in this Court. Gattani J. by his order dated December 2, 1971 filed that framing of an issue in respect of the quantum of alimony was essential to the right decision of the application under Sec. 25 of the Hindu Marriage Act and he therefore framed the following issue namely, "whether the petitioner is entitled to get alimony from her husband Sangram Singh and if so, what should be the quantum of that alimony per month," He remanded the case back to the District Judge with the direction that Lower Court will take evidence of both the parties and to submit the report to this Court Thereafter, the wife led evidence before the District Judge. During the pendency of the matter before the District Judge that Court ordered on February 8, 1972 that the total amount of arrears which comes to Rs. 30,800/ - will be paid by Sangram Singh to Daulat Kumari in monthly instalment at the rate of 10,300/ - The first instalment was to be paid on 7 -3 -72, and the third instalment was to be paid on 7 -5 -72 and that if any instalment was not paid husband would be debarred from taking part in the proceedings. The appellant was not able to pay the arrears and though be applied before thr District Judge for extension of time to allow him to lead evidence, the District Judge did not see any reason to change his earlier order and therefore Sang ram Singh was not allowed to lead evidence before the trial Court The District Judge, therefore, considered the evidence and came to the conclusion that maintenance at Rs. 750/ - per mouth cannot be considered by any standard to be excessive and granted that amount as maintenance to the wife. The District Judge also rejected the charge of adultery against the wife and found no evidence sufficient for that. He thereafter submitted the report dated 11 -8 -72 to this Court.

(3.) The first objection raised by the learned counsel for the appellant -husband is that the denial of opportunity by the District judge to lead evidence was not justified and he has been deprived of proving his case. Reference to the order of the District Judge shows that it was after full hearing that the direction was given for the payment of arrears of maintenance by 7th May, 1972. The District Judge noted that Rs. 400/ per month which was directed to be paid by Sangram Singh had not been paid and therefore in the circumstances an order debarring him from leading evidence was passed. I see no reason to take a different view from that taken by the learned District Judge. That apart, there is a stronger reason why the appellant cannot make any grievance on this score. The record shows that after the receipt of the report the matter came before this Court on 22 -9 -72 when grievance was made by the appellant husband that he was not allowed to produce evidence because he failed to pay a part of arrears of maintenance. On this by an agreement of the learned counsel for both the parties it was agreed that after the witnesses of the wife had been examined the statement of the appellant will be recorded subject to the condition that be will clear off all arrears of maintenance Subsequently, an application was filed by the appellant under O 13 R 2 and O. 41 Rule 27 by which the appellant wanted to produce evidence in the court. By an order dated 7 -8 -74 the appellant was given leave to produce the documents in evidence subject of payment of cost. 7 -10 -74 was fixed for evidence of the appellant but. he was again absent and the Court adjourned the case for recording his statement on 18 -11 -74 The appellant again was absent and the matter was adjourned for recording his statement on 18 -2 -75. It appears that as the petitioner was not able to clear arrears date for recording the appellants evidence continued to be adjourned. On 10 -10 -75 Tyagi J. (as his Lordship then was) allowed the appellant an opportunity to lead evidence provided he cleared off all arrears, within two months. In case of failure to clear arrears, the application for adducing evidence shall stand automatically dismissed The matter having come up before Acting C 1 on 11 -3 -76 it was ordered that the order of this Court dated 10 -10 -75 was preemptory in nature and as the appellant had not deposited the amount of arrears he cannot now adduce evidence and the case should be listed for hearing. The appellant had again filed an application dated 2 -8 -76 under Sec. 61 CPC praying that he should be allowed to adduce evidence and has said that he did not pay the arrears because of certain difficulties Learned counsel for the appellant Mr. Agarwal has stated that as the arrears have now been paid upto due the appellant should be allowed to load evidence. I am afraid this application cannot be entertained. By an order dater dated 22 -9 -72 the appellant had been given opportunity to produce evidence subject to payment of arrears. A couple of years has passed yet the arrears remained not fully paid and even the last opportunity was given to him to pay the arrears within two months, on 10 -10 -75. Another effort was made to persuade Tyagi Acting C.J. but the same was unsuccessful as is clear from the order dated 11 -3 -76. I set no reason to come to a different conclusion and to allow the appellant to adduce evidence at this belated stage as it would not be proper to reopen the order which has been passed by this Court previously. I therefore, agree with the order passed by the District judge in closing the evidence when the appellant did not pay the arrears. Opportunity was given to him by this court but he disentitled himself by his own fault. He cannot now seek indulgence of this Court for being given another opportunity.