HC sets aside divorce as man fails to pay maintenance

› Nonpayment of maintenance or litigation expenses by the spouse would amount to a ‘wrong’ within the meaning of Section 23 of the Hindu Marriage Act.

HIGH COURT BENCH

CHANDIGARH:THE Punjab and Haryana high court on Saturday set aside a divorce order passed by a Patiala court as the applicant failed to pay maintenance to his wife as directed by the high court.

The high court bench of justice MMS Bedi and justice justice AG Masih held that non-payment of maintenance or litigation expenses by the spouse would amount to a “wrong” within the meaning of Section 23 of the Hindu Marriage Act, leading to the conclusion that the spouse is taking advantage of his/her own “wrong” disentitling the other the relief claimed.

The term ‘wrong’ means an act or omission, which adversely affects the other side. In the case in hand, the trial court had granted divorce on the grounds of cruelty on the argument of husband that wife was quarrelsome, rude and uncaring, who not only used abusive language against the husband but his mother and other family members as well.

The wife appealed before the high court which directed husband pay maintenance of Rs 20,000 per month. However, the husband did not comply with the order passed in 2015, despite opportunities given by the court.

The HC observed that Section 24 of Hindu Marriage (HM) Act does not provide for a remedy in case of non-compliance of the order by a party. The remedy of filing execution petition under the Act for recovery would take years together.

“That would frustrate the very purpose…for providing maintenance to the spouse for sustenance and leading a dignified life, which is the responsibility of the other, who is better off,” the HC bench said.

The court observed that despite being aware of the order, if a party does not comply with it, the court would not “dance to his tune” nor can it sit as a “mute spectator” to such an approach of the party. “The Court is neither powerless nor helpless as the remedy is available under Section 21 of the HM Act, which makes Civil Procedure Code, 1908 applicable to all proceedings,” the HC bench said.

It added that in such circumstances, the court is fully empowered to invoke the provisions of Section 151 of the Code of Civil Procedure and can resort to striking out the pleadings of the defaulter party. Thus, the court without taking note of arguments of husband, struck off his defence and allowed the petition of wife, nullifying the divorce order by trial court.