Maximus Fernandez alias Maxwell Fernandez v. Olga Fernandez

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** **OP (FC).No. 276 of 2018** **AGAINST THE ORDER IN I.A.NOS.2392/2012, 2911/2015, 2818/2017 IN OP 651/2011 of FAMILY COURT,KOLLAM** ## **PETITIONER:** **MAXIMUS FERNANDEZ ALIAS MAXWELL FERNANDEZ AGED 68 YEARS, S/O. LATE DUNCAN FERNANDEZ, SHILPA(VRA 142),VADAKKUMBHAGAM CHERRY,KOLLAM EAST VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)** ## **RESPONDENT:** **OLGA FERNANDEZ** **AGED 61 YEARS, W/O. MAXIMUS FERNANDEZ @ MAXWELL FERNANDEZ,SHILPA,(VRA 142), VADAKKUMBHAGAM CHERRY, KOLLAM EAST VILLAGE,KOLLAM DISTRICT - 691 001.** **BY ADV. SRI.SAJU J PANICKER** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13.09.2018, THE COURT ON 24.09.2018 PASSED THE FOLLOWING:** O.P.(FC) NO.276/2018 2 ## **'CR'** ## **JUDGMENT** ## **R.Narayana Pisharadi,J** The petitioner is the husband and the respondent is the wife. The petitioner has challenged Exts.P5, P6 and P8 orders passed by the Family Court, Kollam in O.P.No.651/2011 filed against him by the wife. 2. O.P.No.651/2011 is filed by the respondent against the petitioner for granting a decree for realisation of an amount of Rs.75,75,000/- from him and also for maintenance @ Rs.25,000/- per month. The respondent filed an application as I.A.No.2202/2011 in that case claiming interim maintenance from the petitioner. As per the order dated 11.01.2012, the Family Court directed the petitioner to pay interim monthly maintenance @ Rs.10,000/- to the respondent. The petitioner challenged the aforesaid order by filing O.P.(FC) No.1316/2012 before O.P.(FC) NO.276/2018 3 this Court. But, as per the judgment dated 11.04.2012, this Court dismissed O.P.(FC) No.1316/2012. 3. Thereafter, the respondent filed three applications as I.A.Nos.2392/2012, 2818/2017 and 2911/2015 in O.P.No.651/2011. The application I.A.No.2392/2012 was filed by her to strike off the defence of the petitioner in O.P.No.651/2011. The application I.A.No.2818/2017 was filed by her for withholding the trial of the case. The application I.A.No.2911/2015 was filed by her for directing the tenants of the buildings owned by the petitioner to deposit in the court the arrears of rent payable by them to the petitioner. 4. As per Ext.P5 order passed in I.A.No.2392/2012, the Family Court found that the petitioner had deliberately disobeyed the order passed by the court for payment of interim maintenance to the respondent and therefore, ordered that the defence of the petitioner in O.P.No.651/2011 shall be struck off. As per Ext.P6 order passed in I.A.No.2818/2017, the Family Court directed O.P.(FC) NO.276/2018 4 that the trial of the case O.P.No.651/2011 shall be withheld till the petitioner pays the arrears of maintenance to the respondent. As per Ext.P8 order passed in I.A.No.2911/2015, the Family Court directed the tenants of the buildings owned by the petitioner to deposit in the court the arrears of rent payable by them to the petitioner from the month of January, 2016 onwards. 5. We have heard learned counsel for the petitioner as well as the respondent. 6. We find no illegality or impropriety or perversity in Ext.P5 order passed by the Family Court, striking off the defence of the petitioner in the case O.P.No.651/2011. The judgment of this Court in O.P.(FC) No.1316/2012 would show that the petitioner was working as an Engineer in Kuwait. Of course, the petitioner has got a plea that he retired from his job in December, 2014. The judgment in O.P.(FC) No.1316/2012 was passed by this Court on 11.04.2012. The petitioner has not offered any excuse for non-payment of the interim monthly maintenance ordered O.P.(FC) NO.276/2018 5 to be paid by him to the respondent atleast for the period till he retired from his job. Contumacious conduct on his part is evident. It is well settled by a catena of decisions of this Court that the court can exercise the power under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to strike off the defence of a party who wilfully makes default in payment of interim maintenance to the spouse (See Mangalam v. Velayudhan : 1992(2) KLT 553, Jayasree v. Vivekanandan : 2012(2) KLT 249, Mahesh v. Roopa : 2017(3) KLT 226 and Shafi v. Raihanath : 2018(3) KHC 851). 7. Now we shall consider the legality of Ext.P6 order passed by the lower court. As per Ext.P6 order, the Family Court has directed that the trial of the case O.P.No.651/2011 shall be withheld till payment of the arrears of maintenance by the petitioner to the respondent. As per Ext.P6 order, the lower court has really stayed or kept in abeyance the trial of the aforesaid O.P.(FC) NO.276/2018 6 case. 8. In **Anita Karmokar v. Birendra Chandra Karmokar: AIR 1962 Cal 88** , the Calcutta High Court has held that an order for payment of interim maintenance passed by the court under Section 24 of the Hindu Marriage Act, 1955 can be enforced by staying the main proceedings. The decision of the Punjab High Court in **Malkan Rani v. Krishan Kumar : AIR 1961 Punjab 42** was followed in that case. The Madhya Pradesh High Court has followed these decisions in **Bhuneshwar Prasad v. Dropta Bai: AIR 1963 MP 259** and held that here is nothing to prevent a court from exercising its inherent power and staying the suit for the purpose of carrying out the object of an order made under Section 24 of the Hindu Marriage Act. In **Ramachandra Rao v. Kowsalya : AIR 1969 Kant 76** , it has been held that when the husband failed to pay the interim maintenance, the court has inherent power to stop further proceedings which were commenced by the husband. O.P.(FC) NO.276/2018 7 ## 9. In **Vanmala v. Maroti Sambhaji Hatkar : AIR** **1999 Bom 388** , the husband filed petition for divorce under Section 13 of the Hindu Marriage Act, 1955. The application filed by the wife in that case for interim maintenance was allowed. The husband did not pay the interim alimony. The helpless wife then filed an application seeking intervention of the court for direction to the husband to pay arrears of maintenance. The lower court rejected that application. The Bombay High Court criticized the lower court holding thus: _“The learned Matrimonial Court, it appears, laboured under wrong impression that he lacks jurisdiction in the matter of enforcement of the order in the nature of interim alimony. He has completely forgotten the very purpose of section 151 of the Civil Procedure Code. A Court can, in exercise of its powers under section 151 of the Civil Procedure Code, pass an order of staying the petition of divorce if it is found that the husband deliberately and contumaciously flouts the order of the Court. There is a power in the Court to make such orders as_ O.P.(FC) NO.276/2018 8 _may be necessary for the ends of justice and to prevent any abuse of process of the Court. The Matrimonial Court, therefore, was under duty to invoke the inherent powers under section 151 of the Civil Procedure Code and should have compelled the erring husband to deposit whole of the arrears of interim alimony and the expenses of the proceedings in the Court within certain point of time. If in spite of passing of such orders, the party under liability flouts the order deliberately, the Court can stay the petition or the proceedings of divorce if the erring party is a petitioner. ...... In the instant case, the Matrimonial Court should have adopted positive approach and ought to have compelled the petitioner husband to deposit the arrears of interim alimony and the expenses of the proceedings in the Court within specified time limit and on his failure, the learned Matrimonial Court could have stayed the very petition for divorce for noncompliance of the order passed under Section 24 of the Hindu Marriage Act, provided the act of the husband is deliberate. Instead of taking positive approach, the learned Matrimonial Court took negative_ O.P.(FC) NO.276/2018 9 _approach and showed complete helplessness in the matter of enforcement of its own order for payment of interim alimony pendente lite. Instead of folding hands and keeping quiet, the Court should always remember that there is a strong weapon in the form of inherent powers as envisaged under section 151 of the Civil Procedure Code in its armoury. In befitting situation and in appropriate circumstance, the Matrimonial Court should not hesitate to invoke the inherent powers under section 151 of the Civil Procedure Code in the matter of implementation of order with regard to interim alimony and the expenses of the litigation by staying the proceedings filed under the Hindu Marriage Act for noncompliance of the order passed under Section 24 of the aforesaid Act and by striking off the pleadings of defaulting party”._ 10. In **Neeta v. Shreyas : AIR 1999 Guj 251** , the wife had instituted proceedings for restitution of conjugal rights in the Family Court at Bombay. At the same time, the husband had filed divorce petition against her in the Court at Ahmedabad. An order for maintenance pendente O.P.(FC) NO.276/2018 10 lite was passed by the Family Court at Bombay in favour of the wife. The order was not complied with by the husband. The wife filed application for stay of proceedings in the divorce petition filed by the husband. He contended that if the order of maintenance pendente lite as passed by the Family Court at Bombay had not been complied with, she may apply for the stay of the proceedings pending in the Family Court at Bombay, but she could not seek stay of the proceedings which were pending in the Court at Ahmedabad in the divorce petition. The Gujarat High Court took notice of the fact that the Court at Ahmedabad where the proceedings in the divorce petition initiated by the husband were pending, could not stay the proceedings which were pending in the Family Court at Bombay nor the stay of the proceedings by the Family Court at Bombay in the wife's petition for restitution of conjugal rights is an answer to the problems faced by her. The Court took note of the fact that the wife was not seeking the stay of the proceedings before some other court and she was seeking O.P.(FC) NO.276/2018 11 the stay of the proceedings before the court itself before which the proceedings were pending. Of course, the ground on which the stay was sought was that the order of maintenance pendente lite passed by the Family Court at Bombay was not being complied with. The Gujarat High Court held that it was not important which Court had passed the order of maintenance pendente lite but what was important was non-payment of the amount of maintenance ordered by a competent court. The Court held that the mere fact that, it was the order passed by the Family Court at Bombay which was not being complied with, cannot come in the way for seeking the stay of the proceedings which were pending before the Court at Ahmedabad by the Court at Ahmedabad itself. It was held that the mere fact that the order which was not complied with had been passed by some other court cannot be a relevant ground for the purpose of depriving the handicapped spouse from obtaining an order of stay with regard to the proceedings from the court before which the O.P.(FC) NO.276/2018 12 other side was stealing a march over the wife. The Court held that it was of no consequence to say that the order which was not complied with was not an order passed by the Court at Ahmedabad and it was an order passed by the Family Court at Bombay. Accordingly, the High Court stayed the proceedings which were pending in the divorce petition filed by the husband in the Court at Ahmedabad. 11. We are inclined to agree with the view adopted by various High Courts in the decisions referred to above. The court is not helpless when a party flouts and disobeys an order for payment of interim alimony and thereby puts the other party at a disadvantage. It is common knowledge that the path of execution is not smooth. There may arise situations where justice has to be done but there is no express provision in the Code to take action. In such situations, the courts have power under Section 151 of the Code to do justice and to redress wrong. Every procedure is to be understood as permissible till it is shown to be prohibited by law. Every court must be O.P.(FC) NO.276/2018 13 deemed to possess all such powers as may be necessary to do the right and to undo the wrong. Section 151 of the Code does not give the court any new power. It merely declares that the court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Inherent power can be exercised to do real and substantial justice. As held by the Apex Court in **Manoharlal Chopra v. Raja Seth Hiralal : AIR 1962 SC 527** , the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 of the Code itself. The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. In matters with which the Code does not deal with, the court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. A court is meant to do justice, no doubt, within the confines of law and principles which are settled from O.P.(FC) NO.276/2018 14 time to time. Therefore, we are of the view that the Family Court has power to invoke Section 151 of the Code, when it acts as a civil court, to do justice between the parties and stay the proceedings before it on finding that a party has deliberately flouted its order to pay interim maintenance to the spouse. 12. Now we shall consider the legality of Ext.P8 order passed by the lower court. The Family Court has directed that the tenants of the buildings owned by the petitioner shall deposit in the court the arrears of rent payable by them to the petitioner from the month of January, 2016. 13. Section 36 of the Code states that the provisions of the Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order). Section 18(1) of the Family Courts Act, 1984 provides that all orders passed by a Family Court, except an order O.P.(FC) NO.276/2018 15 passed under Chapter IX of the Code of Criminal Procedure, shall have the same force and effect as an order of a civil court and shall be executed in the same manner as is prescribed by the Code for the execution of orders. Therefore, an order of the Family Court, acting as a civil court, granting interim maintenance to the wife is executable in accordance with the procedure prescribed under the Code for execution of decrees. Very recently, in **Sheela Jerald v. Pushpadasan (2018 (4) KHC 402 (SC)** , the Supreme Court has held that interim orders are executable under the procedure prescribed under the Code. 14. We find that Ext.P8 order passed by the lower court is really an order in execution of the order passed by it granting interim maintenance to the respondent. But, the lower court has not adopted the procedure prescribed for execution of orders/decrees before passing Ext.P8 order. When a specific procedure is prescribed under the Code for execution of an order, such procedure has to be O.P.(FC) NO.276/2018 16 followed by the court. Since the lower court has not adopted such procedure prescribed under the Code in passing Ext.P8 order, it is not legally sustainable and we are inclined to set aside the same. 15. Though we have found that there is no illegality in Ext.P6 order passed by the lower court staying or withholding the proceedings in O.P.No.651/2011, we are inclined to set aside the aforesaid order also. We take note of the fact that O.P.No.651/2011 is a proceeding instituted by the wife and not by the husband. Staying the proceedings in that case on the ground of non-payment of maintenance by the husband would only cause delay in the disposal of the case. Staying the proceedings in a case instituted by the defaulting party would only achieve the object. Staying the proceedings, in the case instituted by the party to whom the amount is due, would be counter productive. The order passed by the court striking off the defence of the petitioner would subserve the ends of justice and achieve the object. O.P.(FC) NO.276/2018 17 16. Learned counsel for the petitioner submitted that the petitioner is ready to deposit a portion of the arrears of maintenance and he prayed that Ext.P5 order may be set aside on such condition. We are inclined to accept this request since it would atleast provide some solace to the wife. Learned counsel for the respondent submitted that the total amount due from the petitioner to the respondent towards arrears of maintenance comes to Rs.6,20,000/-. Out of this amount, the respondent has withdrawn an amount of Rs.32,000/- deposited in the court by the tenants under the petitioner. The balance amount of arrears of maintenance would come to Rs.5,88,000/-. We are of the view that the petitioner can be directed to deposit an amount of Rs.2,50,000/- in the court as a condition for setting aside Ext.P5 order. 17. Consequently, we quash Exts.P6 and P8 orders passed by the Family Court in O.P.No.651/2011. We direct the petitioner to deposit an amount of Rs.2,50,000/(Rupees two lakhs fifty thousand only) in the Family Court O.P.(FC) NO.276/2018 18 within a period of one month from today. If the amount is deposited within the stipulated period, Ext.P5 order passed by the Family Court, striking off the defence of the petitioner in O.P.No.651/2011, shall stand set aside. Needless to say, on failure of the petitioner to deposit the aforesaid amount within the stipulated time, Ext.P5 order shall stand and the Family Court shall proceed with the trial of the case and dispose of it at the earliest without taking into consideration the defence of the petitioner therein. If the amount is deposited, the respondent is at liberty to withdraw the same. The Original Petition is disposed of accordingly. ## **C.K.ABDUL REHIM, JUDGE** **R.NARAYANA PISHARADI, JUDGE** jsr/18/09/18 O.P.(FC) NO.276/2018 19 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PETITION IN O.P 651/2011 OF THE FAMILY COURT, KOLLAM.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11.1.2012 PASSED BY FAMILY COURT, KOLLAM IN I.A 2202/2011.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P(FC) 1316/2012.** - **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY JFMCII, KOLLAM IN MC 115/2011.** **EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY FAMILY COURT, KOLLAM IN I.A 2392/2012 DATED 26.3.2018. EXHIBIT P6 TRUE COPY OF THE ORDER IN I.A 2818/2017 OF THE FAMILY COURT, KOLLAM DATED 26.3.2018.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 12.12.2017 IN RCP 03/2017.** **EXHIBIT P8 TRUE COPY OF THE ORDER IN I.A 2911/2015 IN O.P 651/2011 OF THE FAMILY COURT, KOLLAM DATED 26.3.2018.** **RESPONDENT'S EXHIBITS :** **NIL** **TRUE COPY** **PS TO JUDGE**