willful non payment of intrm maint, court can strikeoff husbnd's wrtn stmt, but he can fight agnst wife's case! P&H HC Gem. shows that though husband's written statements are struck off, he can continue to cross examine wife's side witeness, prove the falacy in her arguments and argue that she should NOT get her prayers granted !!
in case of willful default , the honourable P & H HC says "....The written statement (of the non paying husband) cannot be looked into or acted upon for any purpose and it will be considered to be a waste paper on the record....."
HOWEVER the honourable court goes on to say and we quote ".....However, the petitioner will be able to attack the statements of the witnesses of the respondent and it will be open to the petitioner to convince the trial court that even from the statements of the witnesses examined by the respondent, coupled with the cross-examination of such witnesses, the respondent was not entitled to any relief u/s 13 of the Act read, with other provisions of the Act or any other law for the time being in force......"
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
Punjab-Haryana High Court
Kupil Dev Aggarwal vs Rajni on 3 October, 2000
Author: R Anand
Bench: R Anand
R.L. Anand, J.
1. This is a civil revision and has been directed against the order dated 1.6.1999 passed by the Addl. Distt. Judge, Chandigarh who struck off the defence of the petitioner and further held that the written statement filed by him and the evidence produced by him shall not he considered. It was also observed by the trial court that the petitioner shall not be entitled to plead his case before the court either by appearing in person or through counsel. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
2. The marriage between the petitioner and his wife Rajni took place on 14.4.1993 as per Hindu riles at Chandigarh. The differences arose between the parties and Rajni filed a petition for grant of divorce u/s 13 of the Hindu Marriage Act on 9.1.1996. It is also stated ai the Bar by ths counsel for the petitioner that Rajni earlier filed an application u/s 24 of the Act on 9.1.1996 and she withdrew that application, which was dismissed as withdrawn on 3.8.1996. She also filed one application u/s 125, Cr.P.C., which was also dismissed as withdrawn on 10.8.1996. Subsequently she further filed a petition u/s 24 of the Act before the court of the learned Addl. Distt. Judge, Chandigarh, who granted the maintenance pendents lite @ Rs. 4,000/-per month, which was reduced to Rs. 3,500/- by the High Court in revision. Apart from that, litigation expenses amounting to Rs. 12,000/- were granted to the wife. It is also stated at the Bar by the counsel for the petitioner that against the order granting maintenance pendente lite and litigation expenses, the petitioner has also filed one application for modification of the order, which is also pending before the court of the Addl. Distt. Judge. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
3. It is the common case of the parties that compliance of the order dated 30.9.1998, passed by the court of the learned Addl. Distt. Judge, Chandigarh, as modified by the High Court, has not been made by the petitioner who is a defaulter to the extent of Rs. 22,500/- as on 21.5.1999.
4. In the main petition u/s 13 of the Act, the present petitioner has already filed the written statement in which he has denied the allegations of the respondent. Issues were framed by the trial court on 3.8.1996. The wife led evidence and closed the same on 4.4.1998. Thereafter, the present petitioner, i.e. the husband, examined as many as 25 witnesses and, then, closed his evidence on 11.1.1999. K is stated at the Bar by the counsel for the petitioner that now the main petition u/s 13 of the Act is still pending before the learned Addl. Distt. Judge, Chandigaih, but the same is bound to be transferred to the court of the Distt. Judge, Delhi, after the disposal of the present revision petition, under the orders dated 10.7.2000 of the Hon'ble Supreme Court.
5. I have heard the counsel for the panics and with their assistance have gone through the record of the case.
6. The short point for determination before this court is as to what are the consequences, if a spouse does not comply with the orders and directions passed u/s 24 of the Act, i.e. does not pay the litigation expenses or maintenance pendents file awarded to a spouse.
7. Counsel for the petitioner relies upon section 23 of the Act and submits that this Act does not give power to the court to strike off the defence of the defaulting spouse. Moreover, it is the duty of the court to see whether the default committed by a spouse is wilful or not. Counsel for the petitioner wanted to convey that the respondent-wife has sufficient means to support herself. At one point of time, she operated upon a locker on 15.9.1995 and she withdrew all the costly articles such as jewellery, etc. She is assessed to income-tax. On the other hand, though the petitioner is a lawyer by profession, but he has lost his practice on account of the going litigation as his entire attention has been diverted to the present litigation as a result of which he is not in a position to justify his profession and the clients. It was vehemently submitted by the counsel for the petitioner that the default committed by the petitioner is not wilful. In these circumstances, relying upon the provisions of section 23(1)(a), counsel submitted that the impugned order is totally illegal. Counsel also placed reliance upon Binayak Chandra Pady v. Kamala Padhy alias Padhiani, AIR 1987 Orissa 167 and 1964 Gujarat Law Reporter 417.
8. On the contrary, counsel for the respondent submitted that the petitioner has committed a wilful default. He wants to tease his wife. The maintenance has been awarded to the wife, after taking note of all the circumstances, including the income of both the spouses. The respondent is a Graduate. The order of the couit granting maintenance pendents lite and the litigation expenses has been slightly modified by the High Court in revision and further the order of the High Court has not been set aside by any competent court of jurisdiction. So much so, the petitioner made an application for review before the High Court, which was dismissed. The petitioner was not satisfied with the order of the High Court he approached the Hon'ble Supreme Court in an S.L.P., which has also been dismissed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
9. After considering the rival contentions of the par* ties, I am of the considered opinion that the impugned order requires slight modification. The posit ion of law is well settled. In Modulo India v. Kamakshiya Singh Deo, AIR I9S9 SC 162, their Lordships of the Supreme Court were pleased to consider the effect of a lis, when in such a lis, the defence of the defendant was struck down. Though, it was a eviction suit, yet it was observed by the Hon'ble Supreme Court by referring to the relevant provisions, that in such a situation, the tenant shall still be entitled to cross-examine the witnesses of the plaintiff and address the arguments on the basis of the case of the plaintiff. It was observed by the Hon'ble Supreme Court as follows :-
"The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiff's evidence cannot be acted upon. Looked at from this point of view the view can be taken that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute."
10. The judgments relied upon by the counsel for the petitioner, in my opinion, go against the petitioner. In Modula India's case (supra), it was observed as under :-
"There can be no doubt that contumacious conduct or deliberate act not to comply with the order under Section 24 to pay maintenance pendent lite and litigation expenses can be dealt with stiffly by dismissing the application or striking off the defence of the defaulter as the case may be. Before exercising the said power, court is to give a clear finding based on reasons and material to that effect. Since the Court has the power to stay the proceeding ordismiss the same, the power should be exercised by (sic)."
11. In this case wilfulness on the part of the petitioner can be easily inferred. The order, which was passed by the High Court modifying the order of the trial court, was passed by consent. Meaning thereby, that the petitioner at that time was ready to pay maintenance pendente lite @ Rs. 3,500/- per month to the respondent. By not complying with the directions of the High Court in spite of the fact that consent order was obtained, is nothing but wilful disobedience on the part of the petitioner. In this view of the matter, I hold that the defence of the petitioner has been rightly struck off by the court. Its further effect would be that the written reply/written statement filed by the petitioner to the petition u/s 13 of the Act will be taken off the record and it will presumed and inferred as if it was never filed before the competent court of jurisdiction. The written statement cannot be looked into or acted upon for any purpose and it will be considered to be a waste paper on the record. The witnesses produced and examined by the petitioner in rebuttal to the case of the respondent will be of no use to the petitioner and their statements will not be referred to, looked into or read in evidence. However, the petitioner will be able to attack the statements of the witnesses of the respondent and it will be open to the petitioner to convince the trial court that even from the statements of the witnesses examined by the respondent, coupled with the cross-examination of such witnesses, the respondent was not entitled to any relief u/s 13 of the Act read, with other provisions of the Act or any other law for the time being in force.
12. Accordingly, this revision petition is allowed to limited extent as stated above. However, for all other intents and purpose, the present revision stands dismissed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
13. The parties, through their counsel, are directed to appear before the trial court on 17.10.2000 and thetrial court shall now act as per the directions of the Hon'ble Supreme Court.
14. Nothing stated above shall amount to expression of my opinion on the merits of the case.
15. Revision partly allowed.
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