R. Simil Kumar v Sneha Sankaranarayanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** ## **OP (FC).No.757 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OP 694/2017 DATED 07-122019 OF FAMILY COURT, OTTAPPALAM** ## **PETITIONER/S:** **R.SIMIL KUMAR AGED 41 YEARS S/O. LATE RANGANATHAN, SIMIL NIVAS, OORUPOIKA P.O., ATTINGAL, THIRUVANANTHAPURAM, PIN - 695104** **BY ADVS. SRI.BIJU BALAKRISHNAN SMT.V.S.RAKHEE SMT.K.J.GISHA SMT.SAYUJYA** ## **RESPONDENTS:** **1 SNEHA SANKARANARAYANAN, AGED 30 YEARS D/O.SANKARANARAYANAN, PUTHANPURAKKKAL HOUSE, THRIKKANGODE P.O., MANISSERY, PALAKKAD DISTRICT , PIN 676 123.** **OP (FC).No.757 OF 2019** ..2.. **2 SAURYA, AGED 6 YEARS (MINOR), S/O.R.SIMIL KMAR, PUTHANPURAKKAL HOUSE, THRIKKANGODE P.O., MANISSERY, PALAKKAD DISTRICT, PIN 676 123., REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SNEHA SANKARANARAYANAN** **R1 BY ADV. SRI.P.JAYARAM** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No.757 OF 2019** **==> picture [17 x 9] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 20th day of February, 2020** ## **K.Harilal,J** The petitioner herein is the respondent and the respondents herein are the petitioners 1 and 2, respectively, in I.A.No.1536 of 2019 in O.P.No.694 of 2017 on the files of the Family Court, Ottapalam. I.A.No.1536 of 2019 was filed under Order VI Rule 16 r/w Section 151 of the Code of Civil Procedure (CPC for short) seeking an order to strike out the contentions of the petitioner in the counter affidavit filed in O.P.No.694 of 2017. According to the petitioner, the 1[st] respondent filed O.P.No.653 of 2015 seeking a decree for divorce before the Family Court, Ottapalam and in that Original Petition, she had preferred I.A.No.1499 of 2017 seeking past and future maintenance and litigation expenses and that petition was allowed, as prayed for. 2. The respondents in O.P.No.694 of 2017 filed I.A.No.1536 of 2018 to strike out the pleadings of the petitioner on the ground that the past and future maintenance allowance **OP (FC).No.757 OF 2019** **==> picture [18 x 9] intentionally omitted <==** granted in I.A.No.1499 of 2017 in O.P.No.653 of 2015 was not paid by the petitioner herein. 3. The petitioner herein opposed the said application contending that the non-payment of past and future maintenance and the litigation expenses in O.P.No.653 of 2015 cannot be taken as a ground to strike out the pleadings in O.P.No.694 of 2017. 4. After considering the said objections raised by the petitioner herein, on 07.12.2019, the Family Court Ottapalam passed Ext.P3 order directing the petitioner herein to deposit the entire arrears of interim maintenance amount pending in E.P.No.60 of 2019 on the files of the Family Court, Ottapalam within twenty days from that day and produce the receipt thereof before the Family Court, Ottapalam, failing which, his contentions in O.P.No.694 of 2017 shall be treated as strucked down. The legality and correctness of the aforesaid findings are challenged in this O.P.(F.C). 5. Heard the learned counsel for the petitioner and the learned counsel for the respondent. **OP (FC).No.757 OF 2019** **==> picture [17 x 8] intentionally omitted <==** 6. Admittedly, the petitioner has not paid any amount to the respondents as arrears of interim maintenance in E.P.No.60 of 2019 of the Family Court, Attingal. According to the respondent herein, the E.P. amount is Rs.4,63,525/- and now the amount would come approximately to Rs.6,00,000/-. Therefore, there is no factual dispute with respect to the liability of the petitioner to pay arrears of maintenance allowance in E.P.No.60 of 2019. 7. Then the question to be considered is whether the Family Court, Ottapalam has jurisdiction and power to invoke the inherent power under Section 151 of the CPC to strike out the pleadings in O.P.NO.694 of 2017 on the ground that the petitioner herein has failed to pay arrears of maintenance amount pending in E.P.No.60 of 2019 of the Family Court, Attingal. 7. The learned counsel for the respondents drew our attention to a Division Bench decision of this Court in _**Mahesh v. Roopa**_ [2017 (3) KLT 226] whereby the aforesaid question stands resolved. We have meticulously gone through the decision in _**Mahesh v. Roopa**_ (supra). In this decision, considering the **OP (FC).No.757 OF 2019** **==> picture [18 x 8] intentionally omitted <==** ## question raised above, this Court held as follows:- “10. In _Sudeep Chaudary v. Radha Chaudhary_ ((1997) 11 SCC 286) it was held that the maintenance amount awarded by the Magistrate under S.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 S.13, necessarily, it gives a right to either of the spouse to pay maintenance under S.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 S.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 amounts to abuse of orders of Court. It is deliberate disobedience which has to be taken cognizance by a Court of law. 11. Under such circumstances, as rightly observed in _Jayasree_ (supra), invocation of inherent power under S.151 C.P.C. **OP (FC).No.757 OF 2019** **==> picture [17 x 8] intentionally omitted <==** 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.” 8. In the above view, we find that the legal proposition stands well settled thus. The Family Court, Ottapalam has jurisdiction and power invoking the inherent power under Section 151 of the CPC to strike out the pleadings in O.P.No.694 of 2017 on the ground that the petitioner has failed to pay arrears of interim maintenance amount pending in E.P.No.60 of 2019 on the file of Family Court, Attingal. There is no illegality or impropriety in the findings whereby the Family Court struck down the pleadings in O.P.No.694 of 2017. 9. The learned counsel for the petitioner further submits that he is ready to pay the entire arrears of interim maintenance allowance amount pending in E.P.No.60 of 2019 of the Family Court, Attingal by way of installments. The learned counsel for the **OP (FC).No.757 OF 2019** **==> picture [18 x 8] intentionally omitted <==** respondent submits that installments cannot be allowed and the petitioner may be directed to deposit the entire arrears in E.P.No.60 of 2019 within a reasonable time limit. 10. Having regard to the submissions at the Bar and in the interest of justice, the petitioner is given an opportunity to deposit the entire arrears of interim maintenance amount pending in E.P.No.60 of 2019, pending before the Family Court, Attingal within a period of two months from today, provided the petitioner shall deposit half of the entire arrears of maintenance amount and litigation expense within a period of one month from today and the remaining half shall be deposited within the next one month before the Family Court, Attingal and produce the receipt thereof before the Family Court, Ottapalam. On compliance of the said condition, Ext.P3 impugned order will stand set aside and the petitioner will be allowed to proceed with O.P.No.694 of 2017 before the Family Court, Ottapalam and the Family Court shall dispose of the same on merits. It is needless to say, in the event of failure, Ext.P3 would stand in force, as such. If the amount is **OP (FC).No.757 OF 2019** **==> picture [18 x 9] intentionally omitted <==** deposited as directed above, the respondents are allowed to withdraw the said amount from the Family Court, Attingal. The Original Petition is disposed of accordingly. Sd/- **K.HARILAL JUDGE** Sd/- **C.S.DIAS JUDGE** kkj/24.02.2020 **OP (FC).No.757 OF 2019** ..10.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE I.A.NO.1536/2019 IN O.P.NO.694/2017 ON THE FILES OF THE FAMILY COURT, OTTAPPALAM.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN I.A.NO.1536/2019 IN O.P.NO.694/2017 ON THE FILES OF THE FAMILY COURT, OTTAPPALAM** **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 07-122019 IN I.A.NO.1536/2019 IN O.P.NO.694/2017 OF THE FAMILY COURT, OTTAPPALAM.**