Swaminathan v. Priya and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936** **RPFC.No. 428 of 2014 () ------------------------** **AGAINST THE ORDER IN MC 374/2011 of FAMILY COURT, PALAKKAD DATED 23-06-2014** **REVISION PETITIONER/COUNTER PETITIONER IN M.C.NO.374/2011:-:** **------------------------------------------------------------** **SWAMINATHAN, AGED 43 YEARS, S/O.GURUSWAMY, VADAKKECHALLA, GOVINDAPURAM P.O. MUTHALAMADA VILLAGE, CHITTUR TALUK PALAKKAD DISTRICT - 678 507.** **BY ADV. SMT.NILA. C.V.** **RESPONDENTS/PETITIONER IN M.C.NO.374/2011:-:** **--------------------------------------------** **1. PRIYA,, AGED 34 YEARS, W/O.SWAMINATHAN, PATTIKKULAM, NANNIYODE P.O. PATTANCHERY VILLAGE, CHITTUR TALUK, PALAKKAD - 678 534.** **2. ATHULYA (MINOR), AGED 14 YEARS, D/O.PRIYA, PATTIKKULAM, NANNIYODE P.O. PATTANCHERY VILLAGE, CHITTUR TALUK, PALAKKAD - 678 534.** **3. ASWANTH (MINOR), AGED 8 YEARS, S/O.PRIYA, PATTIKKULAM, NANNIYODE P.O. PATTANCHERY VILLAGE, CHITTUR TALUK, PALAKKAD - 678 534. (2ND AND 3RD RESPONDENTS REPRESENTED BY NATURAL GUARDIAN & MOTHER PRIYA).** **R1-R3 BY ADV. SRI.SUNIL NAIR PALAKKAT R1-R3 BY ADV. SRI.K.N.ABHILASH** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. R.P.(F.C).No.428 of 2014 .................................................. Dated this the 2[nd] day of December, 2014. ## **O R D E R** The counter petitioner in M.C.No.374/2011 of Family Court, Palakkad is the revision petitioner herein. The respondents herein through the first respondent filed an application for maintenance before the Family Court, Palakkad under Section 125 of the Code of Criminal Procedure. 2. It is alleged in the petition that the first respondent is the wife of the revision petitioner and other respondents were born to them in that wedlock. Their marriage was solemnized on 7.5.2000. After four months of their marriage, the revision petitioner started ill treating the first respondent both physically and mentally demanding more dowry. He was even suspecting the chastity of the first respondent and used to spread false rumours against the first respondent. Since she felt that her life will be in danger in the matrimonial home, she was compelled to leave the home. The revision petitioner used to come to the parental house and abuse her. She filed a complaint before the Judicial First Class Magistrate Court, R.P.(F.C).No.428 of 2014 2 Chittur regarding the same. The first respondent has no income of her own to maintain herself. The revision petitioner is a toddy taper and getting Rs.500/- per day. He is capable of paying maintenance. So they filed the petition. 3. The respondent in the lower court filed counter denying the allegations and also stated that he is not getting so much income as mentioned and first petitioner is having sufficient income to maintain herself and children. The interim maintenance was awarded during the pendency of the proceedings. Since the revision petitioner did not pay interim maintenance, the family court struck off his defence and the first respondent was examined as PW1 and relying on the evidence of PW1, the family court allowed the petition directing the revision petitioner to pay maintenance at the rate of Rs.3,000/- to the first petitioner and Rs.2,500/- each to the second and third petitioners from the date of petition namely 18.11.2011. Aggrieved by the same, the present revision has been filed by the revision petitioner/counter petitioner before the court below. 4. Heard both sides. 5. The counsel for the revision petitioner submitted R.P.(F.C).No.428 of 2014 3 that there is no provision for striking off defence for non payment of interim maintenance and illegality has been committed by the the court below by striking off defence and denying opportunity for the revision petitioner to cross examine and adduce evidence. The learned counsel relied on the decision reported in **Davis v. Thomas** (ILR 2007 (4) Kerala 30) in support of his case. 6. The counsel for the respondents submitted that since the revision petitioner had not complied with the direction, court below was perfectly justified in striking off the defence and proceed with the case. 7. It is an admitted fact that the respondents herein filed a petition for maintenance as M.C.No.374/2011 before the Family Court, Palakkad under section 125 of the Code and the learned Family Court Judge granted interim maintenance at the rate of Rs.2,000/- per month to the first respondent and Rs.1,000/each to respondents 2 and 3. The revision petitioner filed Crl.M.C.No.212/2013 to set aside the ex parte interim order of maintenance and the first respondent filed Crl.M.C.No.213/2013 to strike off the plea and contentions of the revision petitioner on the ground that he did not comply with the direction of R.P.(F.C).No.428 of 2014 4 payment of interim maintenance and the learned Family Court Judge dismissed Crl.M.C.No.212/2013 and allowed Crl.M.C.No.213/2013 and struck off the defence and allowed the main case as per the impugned order dated 23.6.2014 which is under challenge now. 8. In the decision reported in **Davi's case** (cited supra), this Court has held that an order of interim maintenance can be passed only if there is a written application for interim maintenance and in the same decision, it has been observed that on failure to pay interim maintenance, the Magistrate cannot strike off the defence relying on the decision reported in **Vinod** **v. Chhaya** (2003 DMC 580) and **Gurvinder Singh v. Mruthi** (1999 (1) Crimes 18) and further observed that if interim maintenance is not paid, the same can be realized by the petitioners in the lower court just as final order for maintenance. In view of the dictum laid down in the above decisions, the procedure adopted by the court below by striking off the defence and proceeding with the case and passing the final order for maintenance is unsustainable in law and the same is liable to be set aside. But, at the same time, this Court feels that some provisions has to be made for R.P.(F.C).No.428 of 2014 5 payment of interim maintenance to the petitioners in the lower court as well. This Court has while staying the execution of the order directed the revision petitioner to pay a consolidated maintenance amount of Rs.3,000/- per month from the date of petition as ordered by the court below and that can be maintained to be paid during the pendency of the proceedings and that will meet the ends of justice as well, So the order passed by the court below striking of the defence and passing final order of maintenance in MC.No.374/2011 of Family Court, Palakkad is set aside and the matter is remitted to the court below for fresh disposal in accordance with law giving opportunity to the counter petitioner to cross examine the petitioners and adduce evidence on the basis of the defence taken by him in the counter and then pass appropriate orders in accordance with law. In the meantime, the revision petitioner is liable to pay interim maintenance at the consolidated rate of Rs.3,000/- to the petitioners in the lower court from the date of petition in the lower court as directed by this Court as per the order in Crl.M.A.No.7346/2014 and continue to pay this amount during the pendency of the proceedings in the lower court and if any default is committed, the respondents herein, R.P.(F.C).No.428 of 2014 6 who are the petitioners in the lower court, are entitled to execute the same through court in accordance with law. Parties a re directed to appear before the court below on 31.12.2014. Considering the fact that the case is of the year 2011, the family court is directed to expedite the disposal of the case as early as possible, at any rate, within three months from the date of receipt of a copy of this order or appearance of the parties before the court below as directed by this Court, which ever is earlier. With the above directions and observations, the revision petition is allowed. Office is directed to communicate this order to the concerned court immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge R.P.(F.C).No.428 of 2014 7