Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 MAT.APPEAL NO. 813 OF 2022** **AGAINST THE JUDGMENT DATED 16.07.2022 IN O.P.NO.626 OF 2016 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA APPELLANT/PETITIONER:** ## **JOHNSON M.ITTY** **AGED 49 YEARS, S/O M.J. ITTY, MANGATTU HOUSE, CHENGALAM SOUTH.P.O, KOTTAYAM NOW RESIDING AT POST BOX NO. 1347, RUWY, POSTAL CODE 112, SULTANATE OF OMAN, REP. BY THE POWER OF ATTORNEY M.J. ITTY, AGED 82, MANGATTU HOUSE, CHENGALAM SOUTH.P.O, KOTTAYAM, PIN – 686005.** **BY ADVS. C.S.MANILAL S.NIDHEESH** ## **RESPONDENT/RESPONDENT:** ## **SHOBHA JOHNSON** **AGED 47 YEARS, W/O JOHNSON ITTY, RESIDING AT NEEROMPLACKAL HOUSE, PAZHAVANGADI.P.O, RANNI, PATHANAMTHITTA, PIN – 689672.** **BY ADVS. ABRAHAM P.MEACHINKARA KURIAKOSE MATHEW MARGARET MAUREEN DROSE JAYAKRISHNAN P.R. THOMAS GEORGE ALEXANDER K.C.** 2 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 **THIS MAT.APPEAL HAVING COME UP FOR FINAL HEARING ON 24.01.2023, ALONG WITH OP (FC).580/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 O.P.(FC) NO. 580 OF 2022** **AGAINST THE ORDER IN O.P.NO.19 OF 2015 ON THE FILE OF THE FAMILY COURT, PATHANAMTHITTA** ## **PETITIONERS:** **1 JOHNSON ITTY AGED 49 YEARS,** **MANGATTU HOUSE, CHENGALAM SOUTH.P.O, KOTTAYAM NOW RESIDING AT POST BOX NO. 1347, RUWY, POSTAL CODE 112, SULTANATE OF OMAN, REP. BY THE POWER OF ATTORNEY M.J. ITTY, AGED 82, MANGATTU HOUSE, CHENGALAM SOUTH.P.O, KOTTAYAM, PIN – 686503.** - **2 M.J.ITTY, AGED 82 YEARS** **MANGATTU HOUSE, CHENGALAMSOUTH.P.O., KOTTAYAM, PIN – 686503.** **BY ADVS. C.S.MANILAL S.NIDHEESH** 4 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 ## **RESPONDENT:** **SHOBHA JOHNSON AGED 47 YEARS RESIDING AT NEEROMPLACKAL HOUSE, PAZHAVANGADI.P.O, RANNI, PATHANAMATHITTA, PIN - 689673** **BY ADVS. ABRAHAM P.MEACHINKARA KURIAKOSE MATHEW JAYAKRISHNAN P.R. THOMAS GEORGE ALEXANDER K.C. MARGARET MAUREEN DROSE** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 24.01.2023, ALONG WITH Mat.Appeal.813/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. ## Mat.Appeal No.813 of 2022 The appellant-husband has filed O.P.No.626 of 2016 before the Family Court, Pathanamthitta seeking a decree of dissolution of his marriage with the respondent, which was solemnized on 25.9.2019. As per the judgment dated 16.07.2022 that O.P. was dismissed. Challenging the said judgment, this appeal has been filed under Section 19(1) of the Family Courts Act, 1984. ## O.P.(FC) No.580 of 2022 2. The respondent-wife filed O.P.No.19 of 2015 before the file of the Family Court, Pathanamthitta, seeking a decree of return of gold ornaments and realisation of money. As per the order in I.A.No.1 of 2022 dated 16.07.2022, the Family Court struck off the pleadings of the petitioner. He challenges the said order in this Original Petition filed under Article 227 of the Constitution of India. 6 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 3. On 13.10.2022, when this matter came up for consideration, this Court on finding that a copy of the order dated 16.07.2022 in I.A.No.1 of 2022 was not issued to the petitioner, a report from the Family Court, Pathanamthitta was called for. Report dated 18.10.2022 was submitted by the learned Judge, Family Court, Pathanamthitta. 4. In both the Original Petition and the Mat.Appeal, the respondent appeared pursuant to notice. 5. Heard the learned counsel appearing for the appellant/petitioner-husband and the learned counsel appearing for the the respondent-wife. 6. The respondent filed O.P.No.19 of 2015 seeking a decree of return of gold ornaments and realisation of money. The appellant-petitioner filed a written statement opposing the claim in the original petition. The appellant/petitioner filed O.P.(Divorce) No.626 of 2016 seeking a decree of divorce on the ground of cruelty and desertion. The respondent has filed a written statement opposing the said original petition. The appellant/petitioner filed O.P.(G&W) No.1103 of 2016 seeking 7 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 custody of the minor children. M.C.No.39 of 2014 was filed by the respondent claiming maintenance for the children. She also filed M.C.No.10 of 2017 claiming maintenance to herself. She also filed MC 140 of 2016 for enhancement of the amount of maintenance ordered in MC No.39 of 2014. 7. The Family Court ordered joint trial of O.P.No.19 of 2015, O.P.(Divorce) No.626 of 2016 ad O.P.(G&W) No.1103 of 2016. Whileso, the respondent filed I.A.No.1 of 2022 in O.P.No.19 of 2015 alleging that the appellant/petitioner did not pay maintenance ordered to be paid to the respondent and for that reason to strike off his pleadings. The appellant petitioner filed I.A.No.2 of 2022 to issue summons to the Bank Manager stating that his examination would prove payment of the entire maintenance amount. A copy of which is Ext.P5. He also filed I.A.No.3 of 2022 seeking extension of time for payment of the amount of arrears. Ext.P6 is a copy of I.A.No.3 of 2022. The respondent opposed Ext.P5 and P6 applications. 8 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 8. Ext.P4 is an order of the Family Court dated 21.04.2022 in I.A.No.1 of 2022. As per the said order, the appellant-petitioner was directed to pay the entire amount of arrears to the respondent within a period of two weeks from the date of that order. It was thereafter the Family Court considered Exts.P5 and P6 applications. 9. The learned counsel appearing for the appellant/ petitioner would submit that the Family Court, without passing any formal order, dismissed Exts.P5 and P6 applications and consequently allowed I.A.No.1 of 2022. Resultantly, O.P.No.626 of 2016 was dismissed for default, obviously as a consequence of striking off his pleadings. Similarly, the pleadings of the appellant/petitioner in O.P.No.19 of 2015 were also struck off. Ext.P8 is the copy of the B-Diary proceedings obtained from the e-court site. The learned counsel appearing for the appellantpetitioner would submit that no copy of the order in Exts.P5 and P6 applications and also I.A.No.1 of 2022 could be obtained, and therefore he was constrained to file O.P.(FC) No.580 of 2022 along with Ext.P8. 9 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 10. Along with the report dated 18.10.2022 the Family Court, Pathanamthitta had submitted a copy of the common order in I.A.Nos.2 of 2022 and 3 of 2022. It is seen that for the reason of the failure on the part of the appellant/petitioner to make payment of the amount of maintenance due to the respondent, those applications were dismissed on 16.07.2022. On the same day, as a sequel to the said order, I.A No.1 of 2022 was allowed. In the report dated 18.10.2022 the learned Judge, Family Court extracted the orders passed whereby the pleadings were struck off, which reads as follows:- "I.A.No.2/2022 and IA.No.3/2022 are dismissed vide common order. Since the respondent has not paid the arrears of maintenance to the petitioner and not produced any document to prove payment of amount to the petitioner I am satisfied that the respondent made willful laches for payment of arrears of maintenance. Hence this petition is allowed and the defence took by the respondent is hereby struck off." 10 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 11. The learned counsel appearing for the petitioner/ appellant would submit that such an order was passed without giving an opportunity of being heard and it is a cryptic one unsupported by any reason. The learned counsel appearing for the respondent, on the other hand, would submit that more than Rs.15 lakhs is due towards arrears of maintenance and in consideration of that the pleadings of the appellant/ petitioner were struck off by the Family Court. The learned counsel appearing for the respondent has thus justified the order in I.A.No.1 of 2022. 12. No doubt, the Family Court has jurisdiction and powers to strike off pleadings in the event of non-payment of maintenance amount without sufficient reason. The husband has obligation to pay maintenance ordered by the court. In this case, there is an allegation that more Rs.15 lakhs is due from the appellant/petitioner to the respondent and the children towards arrears of maintenance. The respondent would contend that she is a cancer patient and in order to meet the treatment expenses, a huge amount is required. 11 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 Since the appellant/petitioner defaulted payment of maintenance, she is finding it difficult to meet the treatment expenses and also the expenses of the children. The obligation of the appellant/petitioner to make payment of the maintenance amount is indubitable. Once the court orders to pay maintenance to the wife and children, the husband cannot wriggle out of that liability saying one or other reasons. The appellant/petitioner, however, has a contention that he has paid the entire amount of maintenance. But, that contention appears not fully correct. From the very fact that he has filed I.A.No.3 of 2022, seeking time to make payment, it is obvious that amount of maintenance is still in arrears. 13. In **Mangalam v. Velayudhan Asari [1992 (2) KLT 553]** this Court held that the Court has inherent power under Section 151 of the Code to strike off the defence on failure to pay pendente lite maintenance ordered by the Court. In **Mahesh v. Roopa [2017 (3) KLT 226]** a Division Bench of this Court held that even in a case where Order VI, Rule 16 of the Code of Civil Procedure, 1908 is not applicable, 12 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 the court has inherent power to invoke Section 151 of the Code to strike off pleadings, if the respondent adopts unscrupulous methods for avoiding payment of the maintenance as per the orders. 14. Be that as it is, when the court exercises powers of striking off the pleadings, the court has to be cautious. In a long line of decisions, the Apex Court reminded the courts in India that the power to strike out pleadings is extraordinary in nature and must be exercised by the courts sparingly and with extreme care, caution and circumspection. A few of such decisions are **Roop Lal v. Nachhatar Singh [(1982) 3 SCC 487]; K. Modi v. K.N. Modi [(1998) 3 SCC 573]** ; and **United Bank of India v. Naresh Kumar [(1996) 6 SCC 660].** 15. In the view of the law laid down in the aforesaid decisions, the Family Court should have stated sufficient reason for striking off the pleading. It should not be done in routine and without assigning sufficient reason. The court should have stated subjective satisfaction before ordering to 13 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 strike off the pleadings. The drastic effect of striking off the pleading should be borne in mind before exercising that power. The report of the Family Court, Pathanamthitta extracted above does not reveal the reasons for striking off the pleadings. If, as as a matter of act, the appellantpetitioner had paid substantial part of the arrears of maintenance, that fact should have been taken into account. Without there having an enquiry regarding that disputed question of fact, the pleadings should not have been struck off. 16. In such circumstances, we are of the view that the order of the Family Court allowing I.A.No.1 of 2022 in O.P.No.19 of 2015 is unsustainable in law and liable to be set aside. For those reasons orders in IA No.2 and 3 of 2022 are also liable to be set aside. Therefore, Mat.Appeal No.813 of 2022 and O.P.No.580 of 2022 are allowed. The Order dated 16.07.2022 in I.A.No.1 of 2022 in O.P.No19 of 2015 is set aside. Consequently, judgment dated 16.07.0222 in O.P.No.626 of 2016 is also set 14 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 aside. The Family Court will restore O.P.No.626 of 2016 on file. The Family Court shall decide I.A.Nos.1, 2 and 3 of 2022 in O.P.No.19 of 2015 afresh. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 15 Mat.Appeal No.813 of 2022 & O.P.(FC) No.580 of 2022 ## **APPENDIX OF OP (FC) 580/2022** ## **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE STATEMENT OF ACCOUNTS FILED BY THE PETITIONER IN O.P 19/2015 FILED BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 14.7.2022** - **EXHIBIT P2 TRUE COPY OF THE I.A 1/2022 IN O.P 19/2015 FILED BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 24.1.2022.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION IN I.A 1/2022 IN O.P 19/2015 FILED BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 8.3.2022.** - **EXHIBIT P4 TRUE COPY OF THE ORDER IN I.A 1/2022 IN O.P 19/2015 FILED BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 21.4.2022** - **EXHIBIT P5 TRUE COPY OF THE I.A 2/2022 IN O.P 19/2015 FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 20.5.2022** **EXHIBIT P6** - **TRUE COPY OF THE I.A 3/2022 IN O.P 19/2015 FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 20.5.2022** - **EXHIBIT P7 TRUE COPY OF THE COMMON ORDER IN I.A 2/2022 AND I.A 3/2022 IN O.P 19/2015 FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, PATHANAMTHITTA DATED 16.7.2022** - **EXHIBIT P8 TRUE COPY OF THE B DIARY PROCEEDINGS OF O.P 19/2015 ON THE FILE OF FAMILY COURT, PATHANAMTHITTA**