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PRAKASH v SMT.VIDHYA - CMA Case No. 1456 of 2004 [2004] RD-RJ 427 (11 October 2004)

S.B. Civil Misc. Appeal No.1456/2004

Prakash @ Kalu Vs. Smt. Vidya & Jaya

Date of Order :: 11-10-2004


Mr. N. Mulchandani, for the appellant.

Heard learned counsel for the appellant.

Though the trial court has granted the decree for divorce against the appellant but appellant is aggrieved against the part of the decree by which the trial court ordered that respondent-plaintiff shall be entitled to recover all the arrears which has become due in pursuance of the order passed under Section 24 of the Hindu Marriage Act in favour of the respondent-plaintiff. Learned counsel for the appellant submits that the appellant has already paid the entire maintenance amount on 12/05/2000 to the respondent-plaintiff and there is no due in appellant against the maintenance amount. Learned counsel for the appellant also submitted an application under Order 41 Rule 27

CPC stating therein that the appellant paid the maintenance amount to the respondent as well as all delivered the goods which were given to the appellant at the time of marriage.

In addition to above, appellant also submitted that the marriage of the appellant and respondent was dissolved in accordance with the custom. The original written deed is in the power and possession of the respondent, therefore, appellant cannot produce that deed, but Sindhi Samaj, Bhilwara gave a certificate certifying that the marriage was dissolved on 12.5.2000 by executing of deed. The appellant wants to place on record the photo copy of the said certificate alleged to have been issued by the Sindhi Central Panchayat, Bhilwara on 3.9.2004.

It appears from the facts of the case that marriage of the appellant and respondent was solemnized on 21.5.1999. The appellant took the same plea in the written statement before the trial court with specific averment of payment of amount of

Rs.77,840/- to the respondent plaintiff. The trial Court struck off the defence of the appellant by order dated 24.5.2004. The trial court after considering all those facts passed the decree for divorce to be effective from the date of decree dated 27.8.2004. In view of the above, when appellant was fully conscious and aware of his case and could have produced the evidence at the time of trial of suit but even after taking the plea, failed to contest the suit, now the appellant have right to produce additional evidence unless his defence is permitted. In the facts, there appears no reason to set aside the order dated 24.5.2004 as it is not even under challenge in this appeal.

Therefore, application under Order 41 Rule 27 CPC is rejected.

The trial court merely passed the decree to the effect that the plaintiff-respondent may recover all arrears of maintenance for which she was found entitled under Section 24 of

Hindu Marriage Act. The quantum is not under challenge. The arrears which are due and legally recoverable as ordered by the trial Court for maintenance in favour of respondent can be recovered and question of payment by the appellant to the respondent against maintenance now cannot be raised either in this appeal or in execution also.

Hence, the appeal of the appellant is dismissed. [PRAKASH TATIA],J.



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