OP (F.C.) No. 2 of 2017 (R) – Mahesh v. Roopa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **OP (FC).No. 2 of 2017 (R) --------------------------** **IA.NO.3799/2016 IN OP 801/2014 OF FAMILY COURT, IRINJALAKUDA** **....** ## **PETITIONER(S)/RESPONDENT/RESPONDENT :** **------------------------------------** **MAHESH, AGED 41 YEARS, S/O.BHASI, VIYYATH HOUSE, MOOTHAKUNNAM VILLAGE, MADPPLATHURUTH DESOM, NORTH PARAVUR TALUK, ERNAKULAM DISTRICT** **BY ADV. SRI.RAJESH CHAKYAT** ## **RESPONDENT(S)/RESPONDENTS/PETITIONER:** **-------------------------------------** **ROOPA, AGED 37 YEARS, D/O.SUBRAHMANIAN, KOOVELI HOUSE, PADIYUR VILLAGE & DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14-02-2017 THE COURT ON 30-05-2017, DELIVERED THE FOLLOWING:** **msv/** **OP (FC).No. 2 of 2017 (R) --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION IN OP.NO. 801/2014** **EXHIBIT P2 TRUE COPY OF THE OBJECTION IN OP.NO. 801/2014 DATED 21.03.2015** **EXHIBIT P3 TRUE COPY OF THE IA.NO. 3799/2016 IN OP.NO. 801/2014** **EXHIBIT P4 TRUE COPY OF THE OBJECTION IN IA.NO. 3799/2016 IN OP.NO. 801/2014** **EXHIBIT P5 TRUE COPY OF THE ORDER IN IA.NO. 3799/2016 IN OP.NO. 801/2014 DATED 19.12.2016** **EXHIBIT P6 TRUE COPIES OF SOME OF THE PAYMENT RECEIPTS TOWARDS MAINTENANCE GIVEN IN MC.NO. 198/2002** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **A.M.SHAFFIQUE, J & K.RAMAKRISHNAN, J** *** * * * * * * * * * * * * *** O.P.(F.C.) No.2 of 2017 ---------------------------------------Dated this the 30[th] day of May 2017 ## **J U D G M E N T** ## **Shaffique, J** This original petition is filed challenging the order dated 19/12/2016 in I.A.No.3799/2016 in O.P.No.801/2014 by which the Family Court had struck off the defence of the petitioner. 2. The short facts involved in the original petition would disclose that O.P.No.801/2014 has been filed by the respondent herein for divorce. Pending the original petition, an application was filed as I.A.No.3799/2016 to strike off the defence of the petitioner under Order 6 of Rule 16 read with Section 151 of the Code of Civil Procedure. Ext.P3 is the said application wherein it is stated that direction had been issued by the Family Court in M.C No.198/2002 to pay maintenance. Since maintenance was not being paid, M.P.Nos.85/2014, 144/2015 and 319/2016 have been filed and the total amount payable as arrears would come to Rs.1,30,000/-. It is, alleging that the petitioner herein was deliberately withholding the payment of arrears of maintenance O.P.(F.C) No.2/2017 2 though he was capable of paying the same, that the application was filed. 3. In the counter affidavit filed as Ext.P4, petitioner contended that the M.C proceedings have been taken under Section 125(3) of the Cr.P.C and if there is non-compliance, the remedy available is to proceed under Section 128. The provision under Order 6 Rule 16 cannot be invoked for the above purpose. 4. The Family Court placing reliance upon the judgment in **Mangalam v. Velayudan Achari** _[1991 KHC 396]_ held that if there is failure to pay arrears of maintenance, the Court can strike off the defence by invoking its inherent power under Section 151 C.P.C and accordingly allowed the application stating that the respondent has no locus standi to contest the matter. 5. Learned counsel for the petitioner submits that the Court below committed serious error in striking off the pleadings. Further it is contended that M.C.No.192/2002 was already disposed of and payments were being made towards maintenance on several occasions. He also produced Ext.P6 series to indicate that certain payments were made. Learned counsel also placed reliance upon a judgment of this Court in O.P.(F.C) No.2/2017 3 **Sakeer Hussain.T.P. v. Naseera and Others** _[2016(5) KHC 167]_ in order to contend that striking off the defence on the basis of arrears of maintenance is outside the jurisdiction of the Family Court. Learned counsel appearing for the respondent, however, supports the view taken by the Family Court. It is contended that the judgment in **Mangalam** (supra) squarely applies to the fact situation. Non payment of amounts directed to be paid by a competent court amounts to abuse of the process of court, in which event, it is well within the jurisdiction of the Family Court to take a decision to strike off the defence. 6. In order to have a correct understanding of the legal position involved in the matter it is worthwhile to consider the judgment relied upon by either side. In **Mangalam** (supra), the original petition was filed for divorce under Section 13 of the Hindu Marriage Act alleging cruelty. Pending the original petition, an application was filed for interim maintenance and litigation expenses which was ordered by the Court below. The said order was modified by the High Court in revision. An application was filed alleging that there is deliberate default in payment and there was a balance of Rs.5,200/-. Prayer was sought for to strike off O.P.(F.C) No.2/2017 4 the defence in regard to the wilful default being committed in payment of the amount ordered by the Family Court. The Court below took the view that there is no provision in striking off the defence under the Hindu Marriage Act and Section 151 of the C.P.C cannot be called in to strike off the defence. The learned Single Judge, however, placing reliance upon the judgments in **Parukutty Amma v. Thankamma Amma** _[1998 (1) KLT 883]_ , **Narayana Nadar v. Jayakodi Ammal** _[1990 (1) D.M.C 596]_ of the Madras High Court, **Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shamala** _[1990 (II) D.M.C 486]_ of the Andhra Pradesh High Court and the judgment of the Punjab and Haryana High Court in **Shri Ram Swaroop v. Janak** _[AIR 1973 P & H 40]_ held that the Court below had inherent jurisdiction under Section 151 to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the Court. In giving effect to its order, the Court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. A learned Single Judge of this Court in **Sakeer Hussain** (supra) while considering a revision petition in a proceeding under Section 125 of the Cr.P.C, had O.P.(F.C) No.2/2017 5 occasion to consider the matter. In the said case, wife filed an application under Section 125 Cr.P.C seeking maintenance. The Family Court ordered interim maintenance to three children. Since the same was not paid, by the impugned order, the Family Court struck off the defence of the husband. Thereafter, final order has been passed. A contention was urged before the High Court that the Family Court has no power to strike off the defence of the respondents on the reasoning that the order for payment of interim maintenance was not complied. After considering various judgments on the point, the learned Single Judge held that in the case which was being dealt with, the Family Court was exercising the power of Magistrate under Section 125 Cr.P.C. The forum alone was shifted but the substantive power has to be traced to Section 125 Cr.P.C. Cr.P.C does not confer a power identical to that of striking of defence of a criminal court and further Magistrate court are not conferred with any inherent power similar to that of Section 151 C.P.C. Therefore such a power is not available. It is, in the said circumstances, that the learned Single Judge held that Family Court, exercising power under Section 125 of Cr.P.C, cannot strike off the defence and O.P.(F.C) No.2/2017 6 thereafter pass a decree for maintenance and accordingly the final orders were set aside. 7. In **Jayasree v. Vivekanandan** [2012 (2) KLT 249], a Division Bench of this Court had occasion to consider the scope and effect of Order VI Rule 16. After referring to the judgments of the Apex Court in **Abdul Razak v. Mangesh Rajaram Wagle** _[(2010)2 SCC 432]_ , **Iqbal v. His Holiness Dr.Syedna Mohd. Burhanuddin Saheb** _[(2005) 13 SCC 759]_ and **Sathi Vijay Kumar v. Tota Singh** _[(2006) 13 SCC 353]_ it is held that the power which is to be exercised under Order VI Rule 16 is confined to the conditions which are referred to in the said provision. Unless any of the circumstances referred to in Order VI Rule 16 are present, the court cannot strike off the defence. Further, placing reliance upon the judgments in **Parukutty Amma** (supra) and **Mangalam** (supra), it was held that the considerations which weighed with the court in a petition under Order VI Rule 16 and in a case of inherent power are completely different. In fact, the Division Bench approved the judgment in **Mangalam** (supra) and observed that a party may be found to have willfully flouted the court orders which warrants invocation of inherent power. It is O.P.(F.C) No.2/2017 7 further held that “it is a threat held out to unscrupulous litigants who do not respect the Majesty of the court, that they will do so at the peril of their not able to establish their case.” **Jayasree** (supra) has been followed by a Division Bench of the Punjab & Haryana High Court in **Krishan Lal v. Jaswinder Kaur** _[2015 KHC 2654]._ That was a case in which, in a petition for divorce, interim maintenance was directed to be paid under Section 24 of the Hindu Marriage Act. After placing reliance upon various judgments, it was observed that though there is a remedy under Section 28A of the Act for execution of decree or interim order, the said right does not stand obliterated or extinguished by striking off the defence of the defaulting spouse. It was held that the legal consequence of the non payment of the maintenance and litigation expenses as directed by the Court is that the defence of the said spouse is liable to be struck off. 9. From the nature of the factual circumstances involved in the matter, the only difference in the present case is that the order to pay maintenance was not passed by the Family Court in O.P.No.801/2014 whereas the order was passed in M.C.No.198/2002 and that too, under Section 125 of the Cr.P.C. O.P.(F.C) No.2/2017 8 The judgment in **Sakeer Hussain** (supra) can have no application to the present case since the impugned order is not passed in a proceeding under Section 125 of Cr.P.C. Therefore, we do not think it necessary for us to consider the correctness of the said judgment. Here is an instance where an application was filed in O.P.No.801/2014 contending that the interim maintenance directed to be paid in M.C.No.198/2002 is in arrears. Though various steps were taken to recover the said amount, still the arrears remains to be paid which would come to about Rs.1,30,000/-. In the case on hand, the Court which passed the order in M.C.No.198/2002 has not passed any order whereas the impugned order has been passed in O.P.No.801/2014. The only question is whether such an order is sustainable or not. 10. It is apparent that though two separate jurisdictions are available to a spouse to demand maintenance, in a case where divorce is sought for under Section 13 of the Hindu Marriage Act, it is well within the power of the Family Court to direct interim maintenance under Section 24. 11. In **Sudeep Chaudhary v. Radha Chaudhary** [1997 (11) SCC 286] it was held that the maintenance amount awarded O.P.(F.C) No.2/2017 9 by the Magistrate under Section 125 of the Cr.P.C has to be adjusted against the amount awarded in the matrimonial proceedings. Therefore, when an original petition is filed under Section 13, necessarily, it gives a right to either of the spouse to pay maintenance under Section 24. In the present case, no such interim maintenance was directed to be paid. But, there was already a direction in M.C.No.198/2002 to pay maintenance to the respondent. 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, non payment definitely amounts to a contumacious conduct on the part of the defaulting party. In the case on hand, the Family Court is considering a claim for divorce and payment of interim maintenance is also a matter coming within the jurisdiction of the Family Court. When it is brought to the notice of the Family Court that the direction to pay maintenance under Section 125 has not been complied with, it is always open for the Family 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. His action of not paying the maintenance clearly O.P.(F.C) No.2/2017 10 amounts to abuse of orders of Court. It is deliberate disobedience which has to be taken cognizance by a Court of law. 12. Under such circumstances, as rightly observed in **Jayasree** (supra), invocation of inherent power under Section 151 of C.P.C 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. In the said circumstances, we are of the view that the Family Court was justified in not permitting the petitioner to continue the defence and there is justification to strike off the pleadings. 13. Learned counsel appearing for the petitioner would, however, submit that certain payments have already been made as per Exts.P6 series. Taking into consideration the overall factual circumstances, we are of the view that one more opportunity can be granted to the petitioner to pay the arrears and if the arrears is not paid within a specified time, the petitioner will not get the benefit of the judgment. 14. Accordingly, this original petition is disposed of as under: O.P.(F.C) No.2/2017 11 i) The petitioner shall pay the entire arrears payable by him as directed in M.C.No.198/2002 within a period of six weeks from the date of receipt of a copy of the judgment and shall satisfy the Family Court that there is no arrears of maintenance, in which event he shall be permitted to contest the matter. ii) If the arrears are paid within the aforesaid period to the satisfaction of the Family Court, the impugned order, Ext.P5 shall stand set aside and the Family Court shall permit the petitioner to contest the matter, in accordance with the procedure prescribed. iii) If the petitioner fails to pay the arrears to the satisfaction of the Family Court within the aforesaid period, he will not get the benefit of this judgment. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(K.RAMAKRISHNAN, JUDGE)** jsr