R.P (FC) No.524 of 2023

1 R.P (FC) No.524 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 ``` ``` RPFC NO. 524 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT MC 27/2021 OF FAMILY COURT, MAVELIKKARA ``` ## **`REVISION PETITIONER/S:`** ``` JIJO MATHEW ALEX,AGED 34 YEARS,S/O.K.M.ALEXANDER, RESIDING AT KOCHUNAMPALATH, JIJO BHAVAN, CHEPAD VILLAGE AND POST, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690507 BY ADVS. T.MADHU C.R.SARADAMANI RENJISH S. MENON VRINDA T.S. ``` ## **`RESPONDENT/S:`** ``` 1ANU T CHERIAN,AGED 32 YEARS,D/O.CHERIAN GEORGE, RESIDING AT RAMANAYYATHU HOUSE, PILAPUZHA, HARIPPAD P.O., KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT, PIN - 690514 2JIYA MARIAM JIJO, MINOR, (5 YEARS),D/O.JIJO MATHEW ALEX, RESIDING AT RAMANAYYATHU HOUSE, PILAPUZHA, HARIPPAD P.O., KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT -690 514 REPRESENTED BY HER MOTHER AND GUARDIAN ANU T CHERIAN (THE FIRST RESPONDENT HEREIN), PIN - 690514 3JELISSA MARIAM JIJO, MINOR, (3 YEARS),D/O.JIJO MATHEW ALEX, RESIDING AT RAMANAYYATHU HOUSE, PILAPUZHA, HARIPPAD P.O., KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT - 690 514, REPRESENTED BY HER MOTHER AND GUARDIAN ANU T CHERIAN (THE FIRST RESPONDENT HEREIN), PIN - 690514 4STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 Sri Aibel Mathew – R1 to R3 Smt.Seetha.S, Public Prosecutor ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.524 of 2023 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.524 of 2023** **----------------------------Dated this the 22[nd] day of November, 2023** ## **ORDER** The revision petition is filed assailing the order dated 17.10.2023 in M.C No.27/2021 of the Family Court, Mavelikkara, striking off the defence of the revision petitioner and posting the application for evidence. The revision petitioner is the respondent and the respondents 1 to 3 are the petitioners before the Family Court. The fourth respondent/State is a formal party. ## **Brief facts** 2. The respondents 1 to 3 have filed the application, under Sec.125 (1) of the Code of Criminal 3 R.P (FC) No.524 of 2023 Procedure (in short, “Code”), seeking monthly maintenance allowance @ Rs.10,000/- each from the revision petitioner. It is their case that the revision petitioner is the husband of the first respondent and father of respondents 2 and 3. The revision petitioner has wilfully neglected to maintain them. Therefore, they are entitled to maintenance. 3. The revision petitioner had filed a written objection denying the allegations in the application. 4. The parties also filed their affidavits of disclosure of assets and liabilities as laid down in the decision of the Hon’ble Supreme Court in **Rajnesh v. Neha and Anr** [2020 (6) KHC 1] . 5. The respondents 1 to 3 had also filed CMP No.37/2021 for an order of interim maintenance 4 R.P (FC) No.524 of 2023 allowance. The application was allowed on 20.1.2023, by a non-speaking order, directing the revision petitioner to pay monthly maintenance allowance to the first respondent @ Rs.7,500/- and the respondents 2 and 3 @ Rs.5,000/- each from 29.1.2021. 6. Subsequently, the Family Court, by the impugned non-speaking order, struck off the defence of the revision petitioner on the ground that he has failed to interim maintenance allowance to the pay respondents 1 to 3. The impugned order has caused severe prejudice to the revision petitioner, who has been denied his valuable right to contest the proceedings. Hence, the revision petition. 7. Heard; Sri.T.Madhu, the learned counsel appearing for the revision petitioner, Sri.Aibel Mathew, 5 R.P (FC) No.524 of 2023 the learned counsel appearing for the respondents 1 to 3 and the learned Public Prosecutor appearing for the fourth respondent/State. 8. The learned counsel appearing for the revision petitioner reiterated the contentions in the memorandum. He argued that Chapter IX of the Code is a self-contained Code. The remedy of the respondents was to file an application under Section 128 to execute the order and not a petition to strike off the defence. The Family Court ought not to have hastily struck off the valuable defence of the revision petitioner. The order is perverse and is liable to be set aside. 9. The learned counsel for the respondents defended the impugned order and submitted that the 6 R.P (FC) No.524 of 2023 Family Court was justified in striking off the defence of the revision petitioner on his willful failure to pay the interim maintenance allowance to the respondents. He relied on the judgments of the Hon'ble Supreme Court in _**Kaushalya v. Mukesh Jain** [2020 KHC 6766]_ and the Division Benches of this Court in _**Mahesh v. Roopa** [2017 KHC 598]_ and _**Muraleedharan v. Jincy** [2018(4) KHC 639]_ . He urged that the revision petition be dismissed. 10. The materials on record reveal that the respondents’ application for interim maintenance was allowed, and the revision petitioner has failed to pay the ordered amount. Consequentially, the Family Court has struck off the defence of the revision petitioner in the proceeding and is proceeding with the trial. 7 R.P (FC) No.524 of 2023 ## 11. Section 125 (1) of the Code reads as follows: “ **Section 125 – Order for maintenance of wives, children and parents.-** (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or - (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. **Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub-Section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to** 8 R.P (FC) No.524 of 2023 **pay the same to such person as the Magistrate may from time to time direct;** **Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.”** [emphasis given] 12. The second and third provisos to sub-section (1) of Section 125 empower the Courts to direct the opposite side to pay interim maintenance to the applicants during the pendency of the main proceeding, and such application is to be disposed of within sixty days from the date of service of notice on the opposite side. 13. Sub-section (3) of Section 125 lays down the procedure for enforcement of maintenance orders, including an order of interim maintenance. 9 R.P (FC) No.524 of 2023 14. In _**Sakeer Hussain T.P**_ **vs. Naseera and Ors [2016 (5) KHC 167]** , this Court, after referring to various judgments on the point of striking off the defence, has held that the extreme step of striking off the defence is not contemplated under the Code, especially when there is an effective remedy available for enforcement of an order of interim maintenance. 15. Later, in _**Mahesh**_ (supra), a Division Bench of this Court, while considering the question as to whether the defence of the respondent in a divorce petition can be struck off on his failure to pay maintenance ordered under Section 125 of the Code, has observed that the invocation of the power under Section 151 of the Code of Civil Procedure is a threat held out to unscrupulous litigants who do not respect the majesty of the Court 10 R.P (FC) No.524 of 2023 and they will be doing so at their peril. Accordingly, the Division Bench upheld the order of the Family Court striking off the defaulter's defence in a collateral matrimonial proceeding. 16. In _**Muraleedharan v. Jincy** (supra)_ another Division Bench of this Court, after referring to _**Mahesh**_ and _**Sakeer Hussain T.P** (supra)_ reiterated the law in _**Mahesh**_ but with a caveat that the courts should exercise due care and caution before striking off the defence because it is a drastic action in law and should be the last resort and not the first resort. It is further observed that there should be a specific pleading in the petition, that there is arrears of maintenance, that there is contumacious conduct on the part of the respondent, that the husband should be given an opportunity to be 11 R.P (FC) No.524 of 2023 heard and that the court should be satisfied there is arrears of maintenance before an order to strike off the pleadings is passed. 17. Subsequently, another learned single Judge of this Court in _**Hari B v. Harsha S. & Anr.** [2021 KHC OnLine 60]_ , after referring to _**Sakeer Hussain T.P. Mahesh**_ , and _**Muraleedharan** (supra)_ has held that the Family Court has no power to strike off the defence in an application under Section 125 on the failure of the husband to pay interim maintenance under Section 24 of the Hindu Marriage Act. 18. It is pertinent to point out that even before the decision in _**Hari B** (supra)_ was rendered, the Hon'ble Supreme Court in _**Kaushalya** (supra)_ , while disposing of an appeal from the order of the Madras High Court 12 R.P (FC) No.524 of 2023 in a proceeding arising under Section 125, upheld the remand order of the High Court on condition that the husband continues to pay maintenance as per the exparte order, which was treated as an order of interim maintenance, and held that on the husband’s failure to pay interim maintenance, the wife has the right to get his defence struck off. 19. Immediately after that, in a landmark judgment in _**Rajnesh v. Neha**_ the Honourable Supreme Court has laid down comprehensive guidelines to deal with applications filed for maintenance under different statutes, including applications filed for interim maintenance under Section 125. After referring to _**Kaushalya** (supra)_ and a catena of decisions of the various High Courts, it is observed as follows: 13 R.P (FC) No.524 of 2023 ## “120. **Striking off the Defence** (i) Some Family Courts have passed orders for striking off the defence of the respondent in case of non - payment of maintenance, so as to facilitate speedy disposal of the maintenance petition. 121. In Kaushalya v. Mukesh Jain ((Criminal Appeal Nos.1129-1130/2019) decided vide judgment dated 24.7.2019), the Supreme Court allowed a Family Court to strike off the defence of the respondent, in case of nonpayment of maintenance in accordance with the interim order passed. xxx xxx xxx ## 130. **Discussion and Directions on Enforcement of Orders of Maintenance** The order or decree of maintenance may be enforced like a decree of a Civil Court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly S.51, S.55, S.58, S.60 read with Order XXI. 131. Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the Courts find default to be wilful and contumacious, particularly to a dependant unemployed wife, and minor children. 14 R.P (FC) No.524 of 2023 132. Contempt proceedings for wilful disobedience may be initiated before the appropriate Court. 20. With the pronouncement of _**Kaushalya**_ and _**Rajnesh** (supra)_ , the law has crystallised that the defence of the respondent can be struck off in a proceeding under Section 125 as the last resort if he willfully and contumaciously fails to pay interim maintenance to his dependent wife and minor child. Thus, the decision in _**Sakeer Hussain T.P**_ (supra) is no longer good law. 21. The intention of the Parliament that an application for interim maintenance is to be disposed of within sixty days is to provide succour to the dependent wife, children and parents during the pendency of the main proceedings. Although Section 125 (3) lays down 15 R.P (FC) No.524 of 2023 the procedure to enforce an order of interim maintenance, the stark truth and reality are that it takes months, if not years, to get the order enforced, by this time, the main proceeding may be disposed, rendering the benevolent purpose of the legislation otiose and leaving the vagrant in the lurch. Perhaps, it is keeping in mind the bottlenecks in the procedure and to uphold the majesty of the Court, the Honourable Supreme Court in the afore-cited precedents has held the defence of the erring husband/father/son can be struck off in a proceeding under Section 125, as a last resort, on his failure to pay interim maintenance. 22. The judgment in _**Hari.B** (supra)_ was pronounced by this Court on 20.1.2021, and the 16 R.P (FC) No.524 of 2023 and were judgments in _**Kaushalya Rajnesh** (supra)_ pronounced on 24.07.2019 and 04.11.2020, respectively. The later decision was rendered without to and . adverting _**Kaushalya Rajnesh** (supra)_ Therefore, the judgment in _**Hari.B** (supra)_ is per incuriam. 23. In the present case, this Court finds the Family Court has failed to provide the revision petitioner an opportunity to pay the entire arrears of interim maintenance before resorting to the extreme step of striking off his defence, which is not in consonance with law laid down in **Rajnesh** and **Muraleedharan** (supra). Therefore, I am of the definite view that the revision should be one more petitioner granted 17 R.P (FC) No.524 of 2023 opportunity to pay the entire arrears of maintenance, and if he does so, he may be permitted to contest the application on merits, which would do complete justice to both sides. In the result, (i) The order dated 17.10.2023 in M.C. No.27/2021 striking off the defence of the revision petitioner will stand set aside subject to the condition that the revision petitioner deposits the arrears of interim maintenance payable to the respondents 1 to 3, as per the order dated 20.1.2023 in C.M.P. No.37/2021, in three equated and successive instalments commencing from 22.1.2024. 18 R.P (FC) No.524 of 2023 (ii) If the revision petitioner deposits the arrears as ordered above, the same shall be released to the respondents 1 to 3, in accordance with law. (iii) If the revision petitioner complies with the direction No. (i), the Family Court shall afford both sides an opportunity to let in evidence and be heard, and then dispose of the application in accordance with law. (iv) The Family Court shall direct the parties to file their affidavits of disclosure of assets and liabilities as laid down in **Rajnesh** (supra), if not already filed. (v) As the application is of the year 2021, the Family Court shall dispose of the application, in accordance with law and as expeditiously as possible. 19 R.P (FC) No.524 of 2023 (vi) Needless to mention, if the revision petitioner fails to comply with direction No. (i), the impugned order shall stand confirmed and the Family Court shall dispose of MC No.27/2021, in accordance with law and the respondents 1 to 3 would be at liberty to execute the impugned order, in accordance with law. sd/- sks/22.12.2023 **C.S.DIAS, JUDGE**