Archana v. Rajeesh A.J. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 MAT.APPEAL NO. 768 OF 2021** **AGAINST THE JUDGMENT IN OP 573/2014 OF FAMILY COURT,** ## **OTTAPPALAM** ## **APPELLANTS/PETITIONERS:** **1 ARCHANA, AGED 38 YEARS D/O. SIVASANKARAN, ARCHANA NIVAS, THRITHALATHODI, MANISERRY P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 101** **2 PRANAV, AGED 2 YEARS REP. BY MOTHER/GUARDIAN, ARCHANA, AGED 38 YEARS, D/O. SIVASANKARAN, ARCHANA NIVAS, THRITHALATHODI, MANISSERY P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT 679 101.** **BY ADVS. C.DHEERAJ RAJAN ANAND KALYANAKRISHNAN** ## **RESPONDENTS/RESPONDENTS:** - **1 RAJEESH A.J, AGED 39 YEARS S/O. JANARDHANAN, ALIKKALAPARAMBIL HOUSE, PRANAVAM, LAKKIDI P.O, OTTAPALM TALUK, PALAKKAD DISTRICT-679 301** **2 JANARDHANAN, AGED 69 YEARS RESIDING AT ALIKKALAPARAMBIL HOUSE, PRANAVAM, LAKKIDI P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 301** **MAT.APPEAL NO. 768 OF 2021** 2 **3 RAGINI, AGED 65 YEARS W/O. JANARDHANAN, ALIKKALAPARAMBIL HOUSE, PRANAVAM, LAKKIDI P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT-679 301** **R2 & R3 BY ADV BINOY VASUDEVAN** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MAT.APPEAL NO. 768 OF 2021** 3 ## **J U D G M E N T** ## A.Muhamed Mustaque, J. This appeal arises from proceedings where the Family Court was constrained to strike off the pleadings of the petitioner in a petition filed by her for recovery of gold ornaments. While ordering so, virtually, the petitioner has been non-suited as nothing would survive in the case for a trial. 2. Brief facts leading to the case are as follows:- 3. The 1[st] petitioner is the wife of the 1[st] respondent. In that wedlock, the second petitioner was born. There are many litigations between the parties. Respondents 2 and 3 are the parents of the 1[st] respondent. They filed a petition for custody of the minor child before the same Family Court. The first respondent is at abroad. The Family Court in those proceedings, allowed custody of the minor child to the **MAT.APPEAL NO. 768 OF 2021** 4 paternal grandfather for a short duration. It appears that, the 1[st] appellant has violated the order and evaded the process of the Court as well. The Family Court, noting the conduct of the 1[st] appellant that she is not complying with the orders passed in a custody matter, resorted to this drastic action of striking off the pleadings on an application filed by the respondents. 4. We heard learned counsel for the appellants and the respondents. 5. The learned counsel for the appellants would submit that, there was no reason for the Family Court to strike off the pleading in a matter which is unrelated to the alleged non-compliance of the order. Therefore, the Family Court committed a serious jurisdictional error in striking off the pleadings of the appellants. 6. On the other hand, learned counsel for the **MAT.APPEAL NO. 768 OF 2021** 5 respondents would submit that, striking off the pleadings is an inherent power of the court, and the court, in order to ensure that its orders are complied, resorted to such drastic action. If the litigant disobeys the orders of the court, the court cannot remain mute spectator to countenance such willful misconduct of the litigant. It is further submitted that, even if the proceedings are separate and distinct, the court can very well use its inherent powers to strike off the pleadings. 7. A Division bench of this Court in **Shyju.P.K vs Nadeera [2021 (5) KLT 693]** has considered a similar issue. The Division Bench considered the inherent power invoking Section 151 of Civil Procedure Code to strike off the defence on failure to pay _pendente lite_ maintenance. The Division Bench specifically noted such power can be exercised by the court in deciding the cause before it and it cannot extend to matters other **MAT.APPEAL NO. 768 OF 2021** 6 than procedural. In paragraph 7 of the said judgment, ## it was observed as follows:- A reading of the above provision would show that an application for maintenance pendente lite and expense of the proceedings would only lie in a proceedings under the Hindu Marriage Act, 1955. Evidently, OP No.304/2012 filed by the respondents claiming return of gold ornaments, patrimony and maintenance is not a petition under any of the provisions of the Hindu Marriage Act, 1955. The said petition has been filed u/s 7(1) Explanation (c) and (f) of the Family Courts Act, 1984. No application for maintenance pendente lite u/s 24 of the Hindu Marriage Act, 1955 would lie in a proceeding other than under the Hindu Marriage Act, 1955. Thus, IA No.1119/2012 is not maintainable u/s 24 of the Hindu Marriage Act, 1955. The respondents have also quoted S.151 of CPC. S.151 recognises the inherent power of the court “to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the court.” The inherent powers saved by S.151 of CPC are with respect to the procedures to be followed by the court in deciding the cause before it. The said powers cannot extend to matters other than procedural. The inherent powers recognized by S.151 cannot be exercised over the substantive right of the parties. Specific powers have to be conferred on the courts for passing orders affecting the substantive right of the parties. The Apex Court in Padam Sen v. State of Uttar Pradesh (AIR 1961 SC 218) has clearly held that the exercise of powers u/s 151 of the Code are not powers over the substantive right of the parties. Hence, S.151 of CPC also cannot be invoked to maintain the application. There is no provision in the Hindu Adoptions and Maintenance Act, 1956 for granting maintenance pendente lite as provided for in S.24 of the Hindu Marriage Act, 1955. At any rate, no argument has been advanced before us to sustain the order under the provisions of the Hindu Adoptions and Maintenance Act, 1956. Hence, we are of the view that the order in IA No.1119/2012 passed **MAT.APPEAL NO. 768 OF 2021** 7 by the court below is without jurisdiction. The order in IA No.918/2014 is only a consequential order to IA No.1119/2012. When the original order is found to be without jurisdiction, the consequential order cannot be sustained. 8. The above judgment clearly shows that the power of the court to strike off the pleadings would arise, if there are occasion for the court to pass such an order. The proceedings followed now is unrelated to the alleged non compliance of the court order. It is also to be noted that the court can resort to striking off the pleadings in extreme circumstances where court has no option but to invoke its inherent power to strike off the pleadings. A mere failure to comply with the order cannot result in striking off the pleadings. 9. In the light of the judgment of this Court in **Shyju'** s case (supra **)** , we are of the view that the impugned order is legally unsustainable. Accordingly, we set aside the impugned order and restore the **MAT.APPEAL NO. 768 OF 2021** 8 pleadings of the appellants. However, we make it clear that if the appellants failed to comply with the order in the custody matter, the Family Court is free to take any action against the appellants, in accordance with law. This Mat. Appeal is allowed. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** Sd/- **SOPHY THOMAS, JUDGE** AS