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Neelam vs Mukesh Kumar on 5 March, 2019

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FAO No.M-5229 of 2017 (OM)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

FAO No.M-5229 of 2017 (OM)
Date of decision:05.03.2019
Neelam …Petitioner
Vs.
Mukesh Kumar …Respondent

Coram: Hon’ble Mr. Justice Rakesh Kumar Jain
Hon’ble Mr. Justice Harnaresh Singh Gill

Present: Mr. R.B.Garg, Advocate, with
Ms. Gitanjali Chhabra, Advocate, for the appellant.

Mr. J.S.Dhaliwal, Advocate,
for the respondent.
*****

Rakesh Kumar Jain, J. (ORAL)

This appeal has arisen from the judgment and decree dated

30.09.2015, by which petition filed by the respondent-husband under

Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the

“Act”) for seeking dissolution of his marriage by a decree of divorce was

allowed.

In brief, the marriage of the appellant was solemnized with the

respondent on 10.02.2007 as per Hindu rites and ceremonies. They were

blessed with a daughter. It is alleged that the appellant-wife deserted the

respondent-husband on 05.03.2009 and also treated him with cruelty,

therefore, a petition was filed by the respondent-husband under Section 13

of the Act for seeking dissolution of his marriage by a decree of divorce.

The appellant had allegedly appeared through her counsel before the

Family Court but did not file the reply and also stopped appearing,

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FAO No.M-5229 of 2017 (OM)

therefore, she was proceeded against ex-parte vide order dated 17.09.2015.

The Family Court, after recording the ex-parte evidence of the respondent-

husband, granted him the decree of divorce on 30.09.2015. Aggrieved

against the said judgment and decree dated 30.09.2015, the present appeal

was filed in which, after notice, the respondent was asked to pay `25,000/-

towards interim litigation expenses to the appellant-wife, which was paid

by him on 03.04.2018. The appellant had filed an application bearing

CMM-100-2017 under Section 24 of the Act qua maintenance pendente lite

and litigation expenses. The said application was allowed vide order dated

04.05.2018, after contest, and the respondent-husband was directed to pay

the maintenance pendente lite @ `6,000/- per month with effect from the

date of application i.e. July, 2017 and `30,000/- towards litigation

expenses, out of which `25,000/-, already paid as interim maintenance, was

ordered to be adjusted. The case was then adjourned to 17.08.2018 for the

payment of entire amount of arrears of maintenance pendente lite

calculated upto 31.08.2018 and litigation expenses.

The case was also referred for mediation in order to explore the

possibilities of a compromise. The appellant had given the calculation of

the amount due towards the maintenance pendente lite and litigation

expenses, which was of `88,323/-, but the respondent-husband did not pay

the amount and on 29.11.2018, besides giving him last opportunity, it was

made clear that if the aforesaid amount is not paid on the next date of

hearing, then the appeal shall be allowed by striking of his defence.

Thereafter, on 17.12.2018, on the request of the counsel for the respondent,

the case was adjourned to 26.02.2019 and the respondent was directed to

bring the amount of maintenance pendente lite on the adjourned date. On

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FAO No.M-5229 of 2017 (OM)

the adjourned date, i.e. 26.02.2019, counsel for the respondent was not

present and the case was adjourned for today in the interest of justice.

Today, counsel for the appellant has submitted that the outstanding

amount of arrears of maintenance pendente lite and the litigation expenses

comes to `1,06,323/- but the counsel for the respondent again prays for an

adjournment.

The request made by the respondent-husband for adjournment is

hereby declined in view of the per entry order dated 29.11.2018 by which it

was made clear that in case the amount of maintenance pendente lite and

litigation expenses is not paid, then the appeal shall be allowed by striking

of the defence of the respondent. Thus, the defence of the respondent is

hereby struck off.

Learned counsel for the appellant has referred to a decision of the

Supreme Court rendered in the case of Hirachand Srinivas Managaonkar

vs. Sunanda, Civil Appeal No.1473 of 1999, decided on 20.03.2001 to

contend that the decree of divorce can be declined on the ground that the

husband has failed to pay the maintenance despite the order of the Court.

We have perused aforesaid decision of the Supreme Court in which

the question for determination before the Court was as to “whether the

husband who has filed a petition seeking dissolution of the marriage by a

decree of divorce under Section 13(1-A)(i) of the Act can be declined relief

on the ground that he has failed to pay maintenance to his wife and

daughter despite order of the Court?” The said question was answered in

affirmative by the Supreme Court.

Thus, while taking into consideration the entire facts and

circumstances much-less the fact that the respondent has been making lame

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FAO No.M-5229 of 2017 (OM)

excuses, one after the other, to avoid the payment of maintenance

pendentee lite and litigation expenses awarded by this Court while deciding

the application filed by the appellant under Section 24 of the Act despite

the fact that he was warned vide order dated 29.11.2018 that if the amount

is not paid, the appeal shall be allowed by striking of his defence, the

present appeal is hereby allowed while having support of the decision of

the Supreme Court in Hirachand Srinivas Managaonkar’s case (supra)

and the judgment and decree dated 30.09.2015 passed by the Family Court

in favour of the respondent-husband is set aside, though without any order

as to costs.

(Rakesh Kumar Jain)
Judge

March 05, 2019 (Harnaresh Singh Gill)
vinod* Judge

Whether speaking / reasoned : Yes / No

Whether Reportable : Yes / No

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