Subaida v. Abdul Gafoor

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
C.S. Dias
Judgment Date: 2020-03-04
Court Decision / Holding: The High Court set aside the common order (Ext.P3) under Article 227 but permitted the respondent to pay the entire arrears of interim maintenance within one month from the date of judgment; failing which the defence in O.P.572/2018, O.P.175/2017 and MC 104/2017 will stand struck off. The Original Petitions are disposed accordingly.
Final Disposition: Disposed of, with directions to pay arrears within one month; otherwise defence to be struck off; original petitions disposed accordingly.

Parties to the Case

Appellants / Petitioners

SUBAIDA

Respondents

ABDUL GAFOOR

Legal Representation & Advocates

Counsels for Petitioners

• Sri. C.A. Anoop
• Smt. R. Krishna

Counsels for Respondents

• Sri. Rony Jose

Case Synopsis & Summary

These original petitions challenge a common order of the Family Court, Malappuram, which refused to strike off the defence of the respondent in three connected proceedings seeking maintenance. The petitioner, Subaida, contends that Abdul Gafoor has willfully defaulted on interim maintenance of Rs. 3,500 per month ordered under CMP 639 of 2017 in MC No.104 of 2017 and in O.P. Nos. 572/2018 and 175/2017. The Family Court, upon consideration, held that it was not expedient in the interest of justice to strike off the defence. The petitioner invoked the inherent powers of the court under Section 151 CPC and Article 227 of the Constitution to correct the order, citing Mahesh v. Roopa (2017) 3 KLT 226 for the proposition that courts can strike off a defence to enforce maintenance obligations to protect the majesty of the court. The High Court, however, notes that there is no embargo on striking off a defence for default in payment, especially where merits are yet to be considered. Considering the respondent’s age (62) and the need to proceed on merits, the court grants one final opportunity to pay the entire arrears of interim maintenance within one month from the date of the judgment; failure to do so will result in the defence being struck off. The original petitions are upheld to the limited extent stated above.

Provisions of Law Cited

Section 151, CPCArticle 227 of the Constitution of India

Legal Doctrines & Maxims

Inherent powers of the Court under Section 151 CPC to strike off the defence.
Power to strike off the defence to protect the majesty of the Court.
Mahesh v. Roopa, 2017 (3) KLT 226 – doctrine cited for maintaining court majesty through maintenance enforcement.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that non-payment of interim maintenance by the respondent warrants striking off his defence under the inherent powers of the court (Section 151 CPC) to ensure compliance with maintenance orders and to uphold the majesty of the court. They contended that the Family Court erred in finding it not expedient in the interest of justice to strike off the defence, and invoked the Mahesh v. Roopa principle supporting such action to enforce maintenance obligations.

Contentions of Respondents

The respondent contended that the applicant has access to funds via remittances from their son working abroad; thus maintenance should not be payable and that striking off the defence is premature. He sought opportunity to settle arrears and argued for consideration of his age (62) and the merits of the case.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mahesh v. Roopa	2017 (3) KLT 226	Positive	Used to justify the power of the court to strike off a party’s defence to ensure enforcement of maintenance and protect the majesty of the court.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** **OP (FC).No.117 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 572/2018 DATED** **04-02-2020 OF FAMILY COURT, MALAPPURAM** **PETITIONER/S:** **SUBAIDA, AGED 46 YEARS W/O.ABDUL GAFOOR, CHERIYAMBADANKACHERITHODY (H), ANTHIYURKUNNU AMSOM DESOM, KONDOTTY TALUK, PIN-673 638** **BY ADVS. SRI.C.A.ANOOP SMT.R.KRISHNA** ## **RESPONDENT/S:** **ABDUL GAFOOR, AGED 58 YEARS S/O. CHERIYAMBADAN KACHERITHODY MOHAMMED, CHERUKUNATH (H), ANTHIYURKUNNU, VALIYAPARAMBU P.O., PIN-676 317** **R1 BY ADV. SRI.RONY JOSE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.03.2020, ALONG WITH OP (FC).121/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 04TH DAY OF MARCH 2020 / 14TH PHALGUNA, 1941** ## **OP (FC).No.121 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OP 175/2017 DATED 04-022020 OF FAMILY COURT, MALAPPURAM** ## **PETITIONER/S:** **SUBAIDA, AGED 46 YEARS W/O.ABDUL GAFFOOR, CHERIYAMBADANKACHERITHODIY HOUSE, ANTHIYURKUNNU AMSOM DESOM, KONDOTTY TALUK, PIN-673 638.** **BY ADV. SRI.C.A.ANOOP** ## **RESPONDENT/S:** **ABDUL GAFOOR, AGED 58 YEARS S/O.CHERIYAMBADAN KACHERITHODY MOHAMMED, CHERUKKUNATH HOUSE, ANTHIYURKUNNU, VALIYAPARAMBU P.O., PIN-676 317.** **R1 BY ADV. SRI.RONY JOSE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.03.2020, ALONG WITH OP (FC).117/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(F.C.) Nos.117 & 121 of 2020 ..3.. ## **JUDGMENT** ## **[ OP (FC).117/2020, OP (FC).121/2020 ] Dated this the 4th day of March 2020** ## **C.S.Dias,J** These original petitions are filed challenging Ext.P3 order passed by the Family Court, Malappuram in I.A.No.1899 of 2019 in O.P.No.572 of 2018 and I.A.No.1900 of 2019 in O.P.No.175 of 2017 and C.M.P.No.851 of 2019 in M.C.No.104 of 2017, whereby the Family Court by its common order dated 04.02.2020, refused to strike off the defence of the respondent on the ground that the trial in the above cases has already commenced. 2. The petitioner in this original petition had filed the above applications, to strike off the defence of the respondent in O.P.No.572 of 2018, O.P.No.175 of 2017 and M.C.No.104 of 2017, as the respondent had failed to O.P.(F.C.) Nos.117 & 121 of 2020 **==> picture [18 x 8] intentionally omitted <==** pay the interim maintenance, at the rate of Rs.3,500/- per month, which was ordered to be paid by the respondent to the petitioner in CMP No.639 of 2017 in MC No.104 of 2017. 3. The respondent filed a counter statement to the above application, _inter alia,_ contending that the son of the petitioner is working abroad for last five years and he is sending money to the petitioner. Therefore, the petitioner is not entitled for any amount as interim maintenance. 4. The Family Court after considering the application and the counter statement, by the impugned order held that, it is not expedient in the interest of justice to strike off the defence of the respondent. 5. A Division Bench of this Court in _**Mahesh v. Roopa**_ [2017 (3) KLT 226] has, _inter aila,_ laid down the law that in order to protect the majesty of the Court, the courts have the power to strike off the defence of a man O.P.(F.C.) Nos.117 & 121 of 2020 ..5.. who refuses to pay maintenance to his wife and children. 6. In view of the above categoric pronouncement of law, the Family Court was not justified in passing the impugned order, holding that it is not expedient in the interest of justice to strike off the defence of the respondent. There is no embargo to strike off the defence of the party committing default, in payment of maintenance, at any stage of the proceedings, invoking the inherent powers of the Court under Section 151 of the Code of Civil Procedure. 7. However, taking into consideration the fact that the respondent is now 62 years of age and the proceedings have to be considered on merits, we are of the considered opinion that the respondent can be granted one more opportunity to pay off the entire arrears of interim maintenance due under CMP No.639 of 2017 in MC NO.104 of 2017. 8. In light of the above findings, we set aside O.P.(F.C.) Nos.117 & 121 of 2020 **==> picture [18 x 8] intentionally omitted <==** Ext.P3 order in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, but permit the respondent to pay the entire arrears of interim maintenance within a period of one month from today, failing which the defence of the respondent in O.P.No.572 of 2018, O.P.No.175 of 2017 and M.C.No.104 of 2017 will stand struck off from the files of the Family Court, Malappuram. The Original Petition is ordered accordingly. Sd/- **K.HARILAL** **JUDGE** kkj/05/03/2020 Sd/- **C.S.DIAS JUDGE** O.P.(F.C.) Nos.117 & 121 of 2020 ..7.. APPENDIX OF OP (FC) 117/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE IA 1899/2019 EXHIBIT P2 THE TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA 1899/2019 EXHIBIT P3 THE TRUE COPY OF THE COMMON ORDER IA NO.1899/2019 IN OP 175/2017 O.P.(F.C.) Nos.117 & 121 of 2020 ..8.. ## **APPENDIX OF OP (FC) 121/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE IA 1900/2019. EXHIBIT P2 THE TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT IN IA 1900/2019. EXHIBIT P3 THE TRUE COPY OF THE COMMON ORDER IN IA NO.1900/2019 IN OP 175/2017.**