1. The instant appeal has been filed under Section 28 of the Hindu Marriage Act, 1955 (for brevity, 'the Act') assailing the judgment and decree, dated 20.4.2002, passed by the learned Additional District Judge, Kapurthala, granting the prayer of the husband-respondent for divorce under Section 13(1)(i) of the Act sustaining the allegation that the wife-appellant has been living in adultery. The view of the learned Additional District Judge emerges from perusal of para 41 and 42 of the judgment, which reads as under:
41. In view of the findings on the issues above, what emerges is that the respondent had sexual intercourse with a person other than the petitioner, her husband. The sexual intercourse was committed when the petitioner was away to Dubai. It resulted in pregnancy and in the birth of a child. The petitioner has not condoned the said act of adultery. A single act of adultery is enough to grant divorce. In the present case the respondent admitted that the sexual intercourse was committed a number of times. The subsequent acts of sexual intercourse are proved to be voluntary and not against the will of the respondent. I am, therefore, of the opinion that the petitioner is entitled to the decree prayed for. I, accordingly, allow the petition and dissolve the marriage between the parties by granting a decree of divorce Under Section 13(1)(i) of the Act.
42. The parties have two children, one is Jiwan Kumar a son and the second is Kazal, a daughter. It is mentioned in Para No. 4 of the petition that both the children are in the custody of the petitioner. In reply to Para No. 4 this fact was admitted by the respondent as correct. The children shall, therefore, remain with the petitioner, of course, subject to the order, if any, of the Guardian Judge, in this respect. Decree sheet be prepared accordingly. The parties are left to bear their own costs. The file be consigned to the record room.
2. During the pendency of the appeal, the wife-appellant filed an application under Section 24 of the Act, being Civil Misc. No. 10529-CII of 2002. The application after contest was allowed, vide order dated 16.3.2004, holding the wife-appellant entitled to Rs. 1,500/- per month as maintenance pendente lite from the date of application and Rs. 5,500/- as litigation expenses. The arrears were required to be cleared within two months from the date of the order i.e. 16.3.2004. The maintenance pendente lite was required to be paid to the wife-appellant on the 7th of each month. However, the aforementioned order was not complied with and an application was filed being Civil Misc. No. 14272-CII of 2004 with a prayer that the defence of the husband-respondent for non-payment of the maintenance pendente lite as per the directions issued by this Court in its order dated 16.3.2004 be struck off. Notice of the application was issued and several opportunities were granted to the husband respondent.
3. On 23.5.2006, time was sought by the husband respondent through his counsel Mr. Sudhir Paruthi and direction was issued to make payment of arrears of maintenance pendente lite and litigation expenses on the next date of hearing i.e. 18.7.2006. The arrears of pendente lite and litigation expenses were not paid by 18.7.2006. Eventually the matter came up for consideration on 9.8.2006 when the defence of the husband-respondent was struck off and the matter was ordered to be listed for hearing on 23.8.2006. The order dated 9.8.2006, reads as under:
An application was filed by the wife applicant for striking off the defence of the husband i.e. non-applicant-respondent on account of non-payment of maintenance allowance and litigation expenses and also non-compliance of the order dated 16.3.2004 passed by this Court. It is appropriate to mention that Rs. 1500/- p.m. as maintenance pendente lite from the date of application and Rs. 5500/- as litigation expenses were awarded vide order dated 16.3.2004. It has been noticed that not even a single penny has been paid by him. Learned Counsel for the husband/non applicant/ respondent sought time to file reply on 23.5.2006. No reply has been filed till date. Learned Counsel has pleaded no instructions on behalf of the non applicant- husband-respondent. It is obvious that the order dated 23.5.2006 directing the husband/non applicant/ respondent to make payment of maintenance pendente lite and litigation expenses by 18.7.2006, also stand violated and the learned Counsel for the non applicant/ husband/respondent has pleaded no instructions.
In view of the above, the defence of the husband/non-applicant/husband is struck off. Matter be put up for final hearing on 23.8.2006.
4. It is true that the wife-appellant could have filed a petition for execution of the order dated 16.3.2004, granting her maintenance pendente lite and litigation expenses. She could even haul up the husband-respondent under the Contempt of Courts Act, 1971, for disobedience of the aforementioned order. All the same if the amount as per the order passed under Section 24 is not paid then the object and purpose of passing such an order would be defeated. It has been held that in such circumstances wife cannot be forced to adopt the tiring procedure of execution for recovery of the amount in pursuance to the direction issued under Section 24 of the Act and the defence of the husband could be struck off. The aforementioned view has been taken by this Court in numerous judgments, which have been relied on in the case of Bani w/o Parkash Singh v. Parkash Singh 1996 (3) PLR 554. The view of this Court flows from the reading of para 7, which is as under:
...The conduct of the respondent-husband amounts to contumacy. Law is not that powerless as to not to bring the husband to book. If the husband has failed to make the payment of maintenance and litigation expenses to the wife, his defence can be struck out. No doubt, in this appeal he is respondent. His defence is contained in his petition filed under Section 13 of the Act. In a plethora of decisions of this Court Smt. Swarno Devi v. Piara Ram 1975 Hindu LR 15; Gurdev Kaur v. Dalip Singh 1980 Hindu LR 240; Smt. Surinder Kaur v. Baldev Singh 1980 Hindu LR 514; Sheela Devi v. Madan Lal 1981 Hindu LR 126 and Sumarti Devi v. Jai Parkash 1985 (1) Hindu LR 84, it is held that when the husband fails to pay maintenance and litigation expenses to the wife, his defence is to be struck out. The consequence is that the appeal is to be allowed and his petition under Section 13 of the Act is to be dismissed.
5. The defence of the husband-respondent has already been struck off on 9.8.2006 and the consequence is that the appeal has to be allowed and his divorce petition filed under Section 13(1)(i) of the Act is to be dismissed.
6. In view of the above, the appeal is allowed and the petition filed by the husband-respondent under Section 13(1)(i) is dismissed. The impugned judgment dated 20.4.2002, passed by the learned Additional District Judge, Kaputhala, is set aside.