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Sudesh vs Roshan Lal on 10 December, 2018

FAO-M-470-2015 -1-

Date of Decision:10.12.2018
. . . . . Appellant
Roshan Lal
. . . . . Respondent

Present: – Ms.Neha Jain, Advocate,
for the appellant.

None for the respondent.


This appeal has arisen from the judgment and decree dated

20.10.2015 by which a petition filed under Section 13 of the Hindu Marriage

Act, 1955 [for short ‘the Act’] filed by the appellant-wife for seeking a

decree of divorce from the respondent-husband on the ground of cruelty was


After notice in the appeal, the respondent had put in appearance

and in order to explore the possibility of a compromise the parties were

relegated to the Mediation and Conciliation Centre of this Court but

unfortunately they could not reconcile and the mediation has failed. The

appellant-wife had also filed an application bearing CMM-196-2015 under

Section 24 of the Act for seeking maintenance pendente lite and litigation

expenses. The said application was allowed on 2.2.2018 awarding `3,000/-

per month towards maintenance pendente lite from the date of application

and litigation expenses to the tune of `20,000/-. It was made clear therein

that since the respondent-husband had already paid `10,000/- towards

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interim litigation expenses, therefore, he would pay `10,000/- as litigation

expenses. The case thereafter was adjourned many times for the purpose of

compliance of the order dated 02.02.2018 and ultimately on 9.08.2018, the

following order was passed by this Court: –

“No one has put in appearance on behalf of

the respondent, despite direction dated

05.02.2018 that in case the interim litigation

expenses besides arrears of maintenance

pendent elite are not paid, the defence of the

respondent will be struck off.

Case called twice. None has appearance on

behalf of the respondent. Therefore, he is

proceeded against ex parte.

For ex parte arguments, adjourned to


Today also no one has put in appearance on behalf of the

respondent. It appears that the respondent-husband is not interested in

contesting this petition.

Learned counsel for the appellant-wife has thus prayed that the

appeal may be allowed as the respondent-husband has failed to pay the

interim litigation expenses which also construe an act of cruelty against the

appellant-wife. In this regard, she has relied upon three judgments rendered

by this Court in the cases of “Beant Kaur Vs. Gurwinder Singh” 2017(1)

RCR (Civil) 223, “Smt. Priyanka Vs. Jai Bhagwan” 2013(26) RCR (Civil)

918 and “Rani @ Raj Kaur Vs. Balwinder Singh @ Gora” 2014(30) RCR

(Civil) 22.

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It is submitted that though the respondent-husband had initially

contested the petition filed under Section 13 of the Act before the Court

below but his evidence was struck off before the trial Court also on account

of non-payment of maintenance pendente lite, however, the trial Court had

erred in dismissing the petition filed by the appellant-wife on the ground that

she could not prove her case that she had been subjected to cruelty by the


Learned counsel for the appellant-wife has submitted that the

respondent-husband has repeated the same thing before this Court by not

appearing to pay the amount of maintenance pendente lite and litigation

expenses awarded by this Court vide order dated 02.02.2018 and despite

granting various opportunities had stopped appearing in this case so that the

appeal may also be dismissed in the same way in which the petition filed

under Section 13 of the Act was dismissed by the trial Court.

We have heard learned counsel for the appellant and after

examining the available record, are of the considered opinion that there is

merit in the submissions made by counsel for the appellant because in the

case of Beant Kaur (Supra), having the similar facts, this Court has held

that non-payment of maintenance pendente lite would construe cruelty

against the wife and that would be a sufficient ground for the purpose of

allowing the appeal. Similar views have been expressed by this Court in the

cases of Smt. Priyanka (Supra) and Rani @ Raj Kaur (Supra).

Thus, in view thereof, in the absence of any representation from

the respondent-husband, we are also following the dicta of this Court held in

the aforesaid cases and allow the present appeal for the purpose of grant of

decree of divorce by setting aside the impugned judgment and decree dated

20.10.2015. The petition filed under Section 13 of the Act is hereby allowed

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FAO-M-470-2015 -4-

and the marriage of the appellant-wife with the respondent-husband,

solemnized on 4.5.2003, is hereby dissolved by way of decree of divorce.

The decree-sheet be prepared accordingly.


10.12.2018 JUDGE

Whether speaking /reasoned : Yes/No
Whether Reportable : Yes/No

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