Ajith R Nath v Reena Ajith R Nath and Master RIHANAJITH (Minor)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** **OP (FC).No.539 OF 2019** **AGAINST THE ORDER IN I.A NO.1875 OF 2019 IN OP 1767/2015 OF FAMILY COURT,TRIVANDRUM** ## **PETITIONER/RESPONDENT:** **AJITH.R.NATH AGED 39 YEARS S/O RAVEENDRANATH,'AISWARYA'CHIYYARAM, CHIYYARAM VILLAGE,THRISSUR DISTRICT-680026.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND** ## **RESPONDENTS/PETITIONERS:** **1 REENA AJITH.R.NATH, AGED 30 YEARS, W/O AJITH R NATH,RESIDING AT SRISHTI, VRN-C-6,CHATTAMBISWAMI ROAD,POOJAPPURA,THIRUVANANTHAPURAM-695012. 2 MASTER RIHANAJITH,(MINOR), AGED 3 YEARS S/O AJITH R NATH,RESIDING AT SRISHTI, VRN-C-6,CHATTAMBISWAMI ROAD,POOJAPPURA,THIRUVANANTHAPURAM695012,REPRESENTED BY HIS MOTHER 1ST RESPONDENT. R1-2 BY ADV. SRI.D.KISHORE R1-2 BY ADV. SRI.R.MURALEEKRISHNAN (MALAKKARA)** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10-12-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.539 OF 2019** **2** ## **JUDGMENT** ## **Dias,J.** **This Original Petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order passed by the Family Court, Thiruvananthapuram ordering the defence of the petitioner to be struck off in O.P. No.1767/2015.** **2. The petitioner has filed this original petition, inter alia, contending that, the respondents had filed O.P.1767/2015 before the Family Court under Section 18 of the Hindu Adoption and Maintenance Act, 1955, seeking monthly maintenance allowance. The respondents are the wife and daughter of the petitioner. Along with the original petition, the respondents filed I.A No.2306/2016,** **OP (FC).No.539 OF 2019** **3** **seeking interim maintenance at the rate of Rs.15,000/- and Rs.20,000/- respectively. The Family Court allowed the application directing the petitioner to pay the amount as sought for in the application from the date of filing the application.** **3. The petitioner has further averred that he challenged the order before this Court in O.P (FC) No.135/2019. This Court by Ext.P1 judgment dated 26.3.2019 partly allowed the original petition and reduced the maintenance allowance to the 1[st] respondent from Rs.15,000/- to Rs.7500/per month. The amount ordered to the 2[nd] respondent was kept in tact.** **4. The petitioner has further averred that the respondents filed I.A No.1875/2019** **OP (FC).No.539 OF 2019** **4** **to strike off the defence of the petitioner in O.P No.1767/2015, on the allegation that he has willfully refused to pay the interim maintenance within the stipulated time, as directed by the Family Court and modified by this Court by Ext.P1 judgment** **5. The Family Court by Ext.P3 order dated 17.7.2019 allowed the application and ordered the petitioner's defence in O.P. No.1767/2015 to be struck off, for noncompliance of the direction to pay interim maintenance.** **6. It is assailing the impugned Ext.P3 order that this original petition is filed.** **7. Heard Adv.Ramprasad Unni.T, the learned counsel for the petitioner and Adv.D.Kishore, the learned counsel for the** **OP (FC).No.539 OF 2019** **5** **respondents.** **8. The learned counsel for the petitioner submits that Ext.P3 order passed by the Family Court is erroneous because it is passed without considering the provisions of O.VI, R.16 of the Code of Civil Procedure (for short “CPC”) in its proper perspective, and also for not following the law laid down by this Court in catena of precedents.** **9. Per contra, the learned counsel for the respondents submits that the petitioner has to pay arrears of maintenance to respondents to the tune of Rs.7,54,200/- as on today. The 2[nd] respondent is a child who is suffering from 'West Syndrome' disease and is under continuous medical treatment. Substantial amount is required for the** **OP (FC).No.539 OF 2019** **6** **medical treatment of the child.** **10. The counsel for the respondents further contends that there is no justification on the part of the petitioner in not paying the amount ordered as interim maintenance as directed by the Family Court and confirmed by this Court by Ext.P1 judgment, which has attained finality.** **11. The question that emerges to be considered is whether the Family Court has jurisdiction to strike off the defence of the petitioner for non-payment of the interim maintenance ordered by the Family Court and confirmed by this Court by Ext.P1 judgment.** **12. Order VI Rule 16 of CPC permits the courts to strike of the defence of the** **OP (FC).No.539 OF 2019** **7** **opposite party at any stage, when there is an abuse of the process of the court. This Court in** _**Shafi & Another v. Raihanath [2008 (3) KHC 851], Mahesh v.Roopa [2017(3)KLT 226]**_ **and** _**Jayasree v.Vivekanandan [2012 (2) KHC 199)**_ **has categorically laid down the law that the courts have the inherent power under Section 151 of the CPC to strike off the defence of the person who willfully disobeys the orders of the court.** **13. This Court in** _**Mahesh v.Roopa [2017(3) KLT 226]**_ **has held that, invocation of inherent power under Section 151 of CPC to strike off the defence is a threat held out to unscrupulous litigants who do not respect the majesty of the court and they will be doing so at their peril. Therefore, the question raised in this** **OP (FC).No.539 OF 2019** **8** **original petition is no longer** _**res-integra**_ **in view of the above authoritative pronouncements.** **14. As this Court by Ext.P1 judgment has fixed the monthly maintenance to be payable by the petitioner to the respondents at the rate of Rs.7500/- and Rs.20,000/- per mensum, we do not think that the petitioner can wriggle out of his liability by nonpayment of the amount. The contentions raised by the petitioner in the original petition though pertains to Ext.P3 order, ordering his defence to be struck off, the same order is a consequence of the noncompliance of Ext.P1 judgment of this Court, which has attained finality. Thus, the petitioner's liability has crystalised, and he has to pay the monthly maintenance to his** **OP (FC).No.539 OF 2019** **9** **wife and child. Therefore, we do not find any illegality or irregularity in Ext.P3 order, warranting the interference of this Court under Article 227 of the Constitution of India.** **15. Taking into consideration the fact that a substantial amount of Rs.7,54,200/is due from the petitioner to the respondents, as on today, we feel it appropriate to show some leniency in favour of the petitioner to clear his liability. Thus, we direct the petitioner to pay the entire amount due to the respondent, within a period of one month from today, failing which Ext.P3 order will stand revived.** **16. Taking into consideration the fact that the original petition is of the year** **OP (FC).No.539 OF 2019** **10** **2015 and is one filed seeking maintenance, we direct the Family Court, Thiruvananthapuram, to dispose of O.P.No.1767/2015 as expeditiously as possible, at any rate, within a period of six months from the date of production of a copy of this judgment.** **The original petition is disposed of, accordingly.** Sd/- **K.HARILAL, JUDGE** **ma/13/12/2019** **Sd/-C.S.DIAS, JUDGE** /True copy/ P.S to Judge **OP (FC).No.539 OF 2019** **11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF JUDGMENT DT.26.03.2019 IN OP(FC)NO.135 OF 2019** **EXHIBIT P2 TRUE COPY OF PETITION FILED BY THE RESPONDENTS IN O.P.NO.1767 OF 2015 ON THE FILE OF THE FAMILY COURT,THIRUVANANTHAPURAM.** **EXHIBIT P3 TRUE COPY OF THE ORDER DT.17.07.2019 IN I.A.NO.1875 OF 2019 IN O.P.NO.1767 OF 2015 ON THE FILE OF THE FAMILY COURT,THIRUVANANTHAPURAM.**