Muraleedharan v. Jincy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940** **OP (FC).No. 417 of 2018** **AGAINST THE ORDER IN I.A.NO.371/2018 IN OP 1402/2012 of FAMILY COURT, PALAKKAD DATED 27-06-2018** ## **PETITIONER/1ST RESPONDENT:** **MURALEEDHARAN, AGED 43, S/O.BALAN, KANNALATH VEEDU, NATTUKKAL, KOZHINJAMPARA, CHITTURT TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** ## **RESPONDENT/PETITIONER:** **JINCY, AGED 33, W/O.MURALEEDHARAN, D/O. VIJAYAKUMAR NEDUNCHIRAKALAM VEEDU, PUDUNAGARAM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN – 678 504.** **BY ADV. SRI.R.HARISHANKAR ADV.PARVATHI NAIR** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03.09.2018, THE COURT ON 18.09.2018 PASSED THE FOLLOWING:** **'CR'** ## **JUDGMENT** ## **R.Narayana Pisharadi, J** The path of execution is not an easy going highway. It does not provide short-cuts to the destination. Thus observed the Calcutta High Court on the hurdles in execution of the orders awarding maintenance to wives ( **Anita Karmokar v. Birendra Chandra Karmokar : AIR 1962 Cal 88** ). 2. This is yet another case in which the order passed by a Family Court striking off the defence of the husband in a proceeding instituted by the wife is under challenge. 3. The petitioner is the husband and the respondent is the wife. The wife filed O.P.No.1402/2012 against the husband and his parents in the Family Court, Palakkad for granting a decree for realisation of an amount of Rs.60,94,753/- which includes the value of the gold ornaments allegedly entrusted to them by her at the time of the marriage and also an amount of Rs.1,00,000/allegedly given to them from her family. 4. The wife subsequently instituted M.C.No.25/2013 against the husband under Section 125 of the Code of Criminal Procedure O.P(FC) No.417/2018 3 for granting maintenance to her and their child. As per the order dated 31.03.2016 in M.C.No.25/2013, the Family Court directed the husband to pay Rs.10,000/- per month as maintenance to the wife and Rs.5,000/- per month as maintenance to the child from the date 15.01.2013. 5. The wife also filed O.P.No.268/2015 against the husband claiming past maintenance due to her and the child. An ex parte decree was passed against him in that case, awarding Rs.5,000/per month as maintenance to the wife and Rs.4,000/- per month as maintenance to the child. 6. On 22.03.2018, the wife filed an application as I.A.No.371/2018 in O.P.No.1402/2012 against the husband and his parents praying that their defence in that case may be struck off for the reason that the husband failed to pay the amount of maintenance ordered to be paid to her and the child in the two other proceedings mentioned above. The husband filed objection to that application. As per the order passed in I.A.No.371/2018, the Family Court found that there was wilful omission by the husband to pay the amount of maintenance awarded to the wife O.P(FC) No.417/2018 4 and the child and it amounted to contumacious conduct on his part and that he has forfeited his right to defend the case O.P.No.1402/2012. Therefore, the Family Court directed the husband to pay or deposit the entire arrears of maintenance liable to be paid by him as per the order in M.C.No.25/2013 and the decree passed in O.P.No.215/2015 and to file a statement on or before the date 23.07.2018. The Family Court also ordered that if the husband failed to pay or deposit the arrears within the stipulated period, his plea in defence of the prayer made by the wife in O.P.No.1402/2012 shall stand struck off. The aforesaid order is challenged in this Original Petition filed under Article 227 of the Constitution of India. 7. We have heard the learned counsel for the petitioner as well as the respondent. 8. Learned counsel for the petitioner contended that the Family Court has no power to strike off the defence of the husband in a proceeding instituted by the wife only for return of gold ornaments and cash on the ground that he failed to pay the amount of maintenance awarded to the wife and the child in O.P(FC) No.417/2018 5 some other proceedings. Learned counsel contended that when the husband makes default in payment of the amount of maintenance awarded to the wife under Section 125 Cr.P.C, the Family Court has no power to strike off his defence in a totally different proceeding instituted before it by the wife in which she has not sought any relief for payment of maintenance. 9. Per contra, learned counsel for the respondent contended that the petitioner is guilty of wilful non-payment of the amount of maintenance awarded to his wife and child and the Family Court has power under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to ensure that the orders passed by it are obeyed and complied with by a party. 10. In dealing with the proceedings instituted under Section 125 Cr.P.C, the Family Court exercises the powers of a Magistrate of the First Class and it acts as a criminal court (See **Sathyabhama v. Ramachandran (1997 (2) KLT 503 (FB** ). The Family Court has no power to strike off the defence of a party in a proceeding under Section 125 Cr.P.C. (See **Sakeer** O.P(FC) No.417/2018 6 **Hussain v. Naseera : 2016 (5) KHC 167: 2016 (4) KLT 186** ). 11. In the instant case, the Family Court has passed the impugned order not in exercise of any power vested on it as a criminal court. The Family Court has passed the impugned in exercise of the powers vested on it under the Code as a civil court. Sub-section (1) of Section 10 of the Family Courts Act, 1984 indicates that subject to other provisions in the Act and the Rules, the provisions in the Code of Civil Procedure and of any other law for the time being in force, shall apply to suits or proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure before a Family Court and for the purpose of the provisions of the Code of Civil Procedure, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. It is now well settled by the decisions of this Court that the Family Court can strike off the defence of a party by invoking the power under Section 151 of the Code (See **Jayasree v. Vivekanandan: 2012 (2) KHC 199 : 2012 (2) KLT 249** and **Shafi v. Raihanath : 2018 (3) KHC 851** ). O.P(FC) No.417/2018 7 12. However, the question for consideration in this case is whether in a proceeding instituted by the wife in which she has not claimed any maintenance or interim maintenance from the husband, the Family Court has power to strike off the defence of the husband for the reason that he had failed to pay the amount of maintenance to the wife or the child which has been ordered to be paid by him in other proceedings instituted by the wife. 13. The impugned order is passed by the Family Court in a proceeding instituted by the wife for realisation of the value of the gold ornaments and cash allegedly entrusted by her with her husband and his parents. It is a proceeding for realisation of movable properties or their value. The Family Court gets jurisdiction to try such a proceeding only by virtue of the provision contained in Clause (c) of the Explanation provided to Section 7(1) of the Family Courts Act, 1984. Learned counsel for the petitioner contended that in such a proceeding instituted by the wife, she could not have claimed any interim maintenance. We find that there is considerable force in this submission. In fact, in an unreported judgment dated 25.11.2014 in O.P (F.C) O.P(FC) No.417/2018 8 No. 417/2014, a Division Bench of this Court has held that in an original petition filed for return of gold ornaments, claim of interim maintenance is not maintainable. But, absence of power to pass an order granting interim maintenance in such proceedings does not mean that the court has no power to strike off the defence of the husband on his wilful default in payment of maintenance to the wife and the child which he is liable to pay by virtue of an order passed by a competent court. 14. The lower court has relied upon the decision in **Mahesh v. Roopa : 2017 (3) KLT 226** to find that it has got the power to strike off the defence of the husband in the proceedings pending before it. In **Mahesh** (supra), the wife had filed the original petition seeking a decree of divorce. Pending that original petition, an application was filed by the wife to strike off the defence of the husband on the ground that he deliberately withheld payment of arrears of maintenance liable to be paid by him by virtue of the order passed in another proceeding under Section 125 Cr.P.C which was instituted before a Magistrate's Court. The Division Bench of this Court held that if one of the O.P(FC) No.417/2018 9 parties to the lis is in arrears of payment of maintenance directed to be paid by a competent court having jurisdiction, non-payment definitely amounts to a contumacious conduct on his part and when it is brought to the notice of the Family Court that the direction to pay maintenance under Section 125 Cr.P.C has not been complied with, it is always open to that court to consider whether a person who does not pay maintenance is entitled to defend the proceedings or whether he has locus standi to defend the proceedings. It was held that his action in not paying the maintenance clearly amounts to deliberate disobedience which has to be taken cognizance by a court of law. We concur with this view. 15. In this connection we may notice that the proceeding instituted by the wife for return of gold ornaments and cash, which were allegedly entrusted by her with the husband, cannot be considered as a proceeding which has no connection with their matrimonial relationship. It cannot be treated as a litigation which has no connection at all with the matrimonial tie between the parties. The husband is a trustee of the gold ornaments, if O.P(FC) No.417/2018 10 any, entrusted with him by the wife. He has liability to account for the same in fiduciary capacity. The proceeding for return of gold ornaments normally arises out of issues of matrimonial discord between the parties. Therefore, the court has the power to ask the husband to clear the arrears of maintenance ordered to be paid by him by a competent court in another matrimonial proceedings. A husband who has not complied with the order of the court to pay maintenance to the wife and child cannot be allowed to raise hyper-technical grounds to steal a march over the other party in the matter of his defence before the court. The courts may come across circumstances which are not covered by any express provision of the Code. Then also justice has to be done. The courts exist for administration of justice. They have the powers to undo a wrong and do the right. If there is a specific law of procedure by which the court is governed, that procedure has to be followed. But, every court must be deemed to possess, as inherent in its very constitution, powers to carry into effect the purpose for which it exists. So long as a particular procedure or action is not expressly prohibited, the court can act 11 O.P(FC) No.417/2018 according to justice, equity and good conscience. Every procedure is to be understood as permissible unless it is prohibited by law. Section 151 of the Code 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. As stated by the Apex Court in **Manoharlal** **Chopra v. Rai Bahadur Rao: AIR 1962 SC 527** , the provisions of the Code do not control the inherent power by limiting it or otherwise affecting it. Inherent power is a power inherent in the court by virtue of its duty to do justice between the parties before it. 16. If one of the parties to the lis is in arrears of payment of maintenance directed to be paid by a competent court having jurisdiction, wilful non-payment of such amount definitely amounts to contumacious conduct on his part. Invocation of inherent power under Section 151 of the Code to strike off the defence is a threat held out to unscrupulous litigants who do not respect the majesty of the court. Striking off the defence of the spouse, who does not honour the order of the court, is the 12 ## O.P(FC) No.417/2018 instant relief that can be granted to the opposite party (See **Mahesh v. Roopa :2017 (3) KLT 226 and Shafi v. Raihanath : 2018 (3) KHC 851** ). 17. True, in the instant case, the order passed against the husband for payment of maintenance is a final order passed in a proceeding instituted by the wife under Section 125 Cr.P.C. It is an order executable against him by the wife under Section 125 (3) Cr.P.C. But, as noticed earlier, the procedure for execution of the order awarding maintenance under Section 125 Cr.P.C is cumbersome. Levying the amount of maintenance can only be made in the manner provided for levying fines. Delay is an invariable and concomitant part of such procedure. Grant of maintenance to wife is a measure of social justice. Section 125 Cr.P.C is specially enacted to protect women and children. The object is to prevent vagrancy and destitution (See **Chaturbhuj v. Sita Bai: AIR 2008 SC 530** ). Sustenance does not mean and can never allow to mean a mere survival. A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither O.P(FC) No.417/2018 13 arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. She cannot be compelled to become a destitute or a beggar (See **Shamima Farooqui v. Shahid Khan : AIR 2015 SC 2025** ). Considering the object of the provision contained under Section 125 Cr.P.C, we have no doubt in our mind that, when the husband wilfully makes default in complying with an order passed by a competent court under Section 125 Cr.P.C granting maintenance to the wife and the children, the defence of such person in any proceedings instituted against him by the wife in connection with or in relation to matrimonial issues between them, can be struck off by the court by invoking the power under Section 151 of the Code. 18. While upholding the power of the court to invoke Section 151 of the Code to do complete justice to the parties by striking off the defence of the husband, we may also emphasise that the courts shall take adequate care and caution to avoid causing injustice. As stated by us in **Shafi v. Raihanath (2018** **(3) KHC 851** ), striking off defence is a drastic action in law. O.P(FC) No.417/2018 14 The last resort cannot be converted into the first resort. First of all, there must be arrears of maintenance due from the husband. Then, the court must be satisfied that he is guilty of contumacious conduct. Failure to pay the arrears of maintenance shall be an act of wilful failure, deliberate default or volitional non-performance. Before passing an order striking off the defence of the husband on the ground of non-payment of maintenance due to the wife, the court shall ensure that the wife has got a specific plea regarding the amount of maintenance which is kept in arrears by the husband. Vague and general assertions made by wife in this regard are not sufficient. When the husband resists the application made by the wife in this regard, he shall specifically state the details of the payments, if any, made by him towards maintenance. When the court passes the order striking off the defence, it shall specifically state the amount payable by the husband and also grant him a breathing time to make the payment so that he could avoid such order. 19. Now, coming to the facts of the present case, we notice that the prayer for striking off the defence of the husband O.P(FC) No.417/2018 15 was made by the wife on the ground of non-payment of maintenance under two heads. She had obtained a decree for realisation of past maintenance from the husband in O.P.No.268/2015 at the rate of Rs.5,000/- per month to her and Rs.4,000/- per month to the child. According to her, the decree in the aforesaid case was passed on 17.06.2017 and an amount of Rs.2,50,000/- is due from the husband towards the decree debt. However, the decree passed against the husband in O.P.No.268/2015 is an ex parte decree. It is stated that the petitioner has filed application for setting aside the ex parte decree against him and the aforesaid application is pending. If that be so, even if it is found that he had failed to pay the amount ordered to be paid by him in O.P.No.268/2015, his failure in that regard cannot be treated as wilful or deliberate disobedience of the order of the court. Therefore, we are of the view that the defence of the petitioner cannot be struck off on the ground that he failed to pay the amount of past maintenance decreed against him in O.P.No.268/2015. 20. The wife had further alleged that as per the order in O.P(FC) No.417/2018 16 M.C.No.25/2013, the husband was ordered to pay an amount of Rs.10,000/- per month to her and Rs.5,000/- per month to the child as maintenance from the date 15.01.2013. She alleged that an amount of Rs.9,00,000/- is due from the husband as arrears of maintenance in this regard. The petitioner has got no case that he had paid any amount towards the maintenance which was ordered to be paid by him as per the order in M.C.No.25/2013. His plea is that he has filed revision petition before this Court challenging the order passed against him in M.C.No.25/2013. However, there is no stay of execution of the order granting maintenance passed in his favour in the revision petition. The petitioner has not offered any reason for not complying with the order of the court to pay maintenance to the wife and the child. Wilful and deliberate failure to pay the amount of maintenance is evident. The amount of arrears of maintenance, due from him to the wife and the child in M.C.No.25/2013, till June 2018 would come to Rs.9,75,000/-. Considering the fact that the revision petition filed by him against the order passed in M.C.No.25/2013 is pending consideration by O.P(FC) No.417/2018 17 this Court, we are inclined to find that he need only pay half of this amount to avoid an order striking off the defence. The half amount comes to Rs.4,87,500/. Learned counsel for the respondent has submitted that the petitioner has recently paid a total amount of Rs.1,50,000/-. The balance of the half amount comes to Rs.3,37,500/. Considering the facts and circumstances of the case, we find that an opportunity can be granted to the petitioner to avoid the impugned order passed by the Family Court by paying or depositing an amount of Rs.3,37,500/towards arrears of maintenance due to the respondent and the child. 21. Consequently, we direct the petitioner to pay the respondent or deposit in the Family Court an amount of Rs.3,37,500/- (Rupees three lakhs and thirty seven thousand and five hundred only) towards arrears of maintenance due to the respondent and the child on or before the date 31.10.2018. On payment or deposit of the amount within the stipulated period the impugned order will stand set aside. On his failure to pay or deposit the aforesaid amount, the impugned order passed by the O.P(FC) No.417/2018 18 Family Court striking off his defence will stand. The Family Court shall keep the proceedings in O.P.No.1402/2012 in abeyance till the date 31.10.2018. The Original Petition is disposed of accordingly. (sd/-) **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr/13/09/2018 O.P(FC) No.417/2018 19 ## **O.P.(FC) NO.417/2018** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** : P1 : TRUE COPY OF PETITION O.P.NO.1402/2012 DATED 18.12.2012 ON THE FILE OF FAMILY COURT, PALAKKAD. P2 : TRUE COPY OF THE IA NO.371/2018 IN O.P.NO.1402/2012 DATED 22.03.2018 ON THE FILES OF FAMILY COURT, PALAKKAD. P3 : TRUE COPY OF THE COUNTER STATEMENT DATED 11.04.2018 FILED BY THE PETITIONER AND HIS PARENTS. P4 : TRUE COPY OF THE ORDER IN I.A.NO.371/2018 DATED 27.06.2018 IN O.P.1402/2012 ON THE FILES OF FAMILY COURT, PALAKKAD. ## **RESPONDENTS' EXHIBITS :** NIL TRUE COPY PS TO JUDGE