Gurdev Singh, J. - (1.)This is an appeal by Satjit Singh against the order, dated 4th February, 1965, of Shri M.L. Jain, one of the Additional District Judges at Delhi, striking oil his delence in a petition for dissolution of marriage brought against him by his wife Shrimati Amarjit Kaur for non-payment of litigation expenses and maintenance pendente lite, which was awarded to the wife by an earlier order of the Court under section 24 of the Hindu Marriage Act, 1956.
(2.)It has been veheroently argued that the learned Additional District Judge had no power to strike off the appellant's defence, and even if he was of the view that the appellant was contumaciously refusing to comply with the order of payment under section 24 of the Hindu Marriage Act, he could at best proceed to take action for contempt against the appellant but had no jurisdiction to deprive him of 'his defence.
(3.)On the other hand, it is "cotended on behalf of the respondent wife that the Court has ample power to prevent abuse of its process and' to see that there is no interference with the course of justice by the husband refusing to pay litigation expenses to the wife who has been compelled to come to the Court seeking divorce, and in exercise of that power the Court was fully competent to strike off the defence of the husband. Reliance in this connection is placed upon a Single Bench decision of the Madras High Court in Mahalittgam Pillai v. Amsayalli where, on consideration of the various authorities including the English and American decisions, Ramaswimi, J held that orders granting maintenance pendents life could not only be executed by the wife but where these payments were made a condition precedent for the taking up of the trial of the petition on hearing of an appeal therefrom, and are not complied with, the petition or the appeal can be dismissed. No other authority has been brought to my notice in which the extreme step of striking off the defence of the defaulting defendant has been taken. On the other hand; in Prithyirajsinhji Mansinghji v. Bai Shivprabha kumari and another", a learned Judge of that Court ruled that normally, the Court in the exercise of its matrimonial jurisdiction cannot order that that the defence of the party sh3uld be struck off for failure to pay interim maintenance unless the refusal is contumacious. In support of this proposition reference was made to an earlier decision of that Court in With elmina Codd v. Bartie Elijah Codd, where Marton, J. had observed:-
"I had occasion in another case of Rodgar v. Rodgar to point out that as far as I can see the English authorities do not strike out a husband's petition or strike out his defence to his wife's petition, merely because he has failed to given security. What they do as far as I ca.n see and as far as counsel's researches have so far been brought before me, is to stay the husband's petition and as regards the wife's petition to proceed against the husband for contempt. If he is proved to be able to pay oat but contumaciously refuses to do so."
The English decisions from which this proposition has been deduced are not referred to in that judgment. Mr. Naubat Rai Suri, appearing for the respondent, has, however, referred to Rayden on Divorce 7th edition) page 382, where it has been observed that apart from other steps which may be taken by the Court to enforce payment, the Court may, in its discretion, refuse to permit the party so in contempt to take a further step in the litigation.