Kerala High Court
Vimal Prem vs State Of Kerala on 5 February, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
O.P.(Crl.) No. 240 of 2024
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2025:KER:9996
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 5TH DAY OF FEBRUARY 2025 / 16TH MAGHA, 1946
OP(CRL.) NO. 240 OF 2024
AGAINST THE ORDER DATED 02.03.2024 IN CRL.M.P.NO.154 OF 2024 &
CRL.M.P.NO. 155 OF 2024 IN MC NO.326 OF 2021 OF
FAMILY COURT, KOLLAM
PETITIONER/RESPONDENT/
RESPONDENT:
VIMAL PREM
AGED 31 YEARS, S/O. PREMCHAND
VIMALALAYAM ,NJARAKKAL, PERINAD P.O,
PERINAD VILLAGE REPRESENTED BY
HIS POWER OF ATTORNEY C.PREMCHAND,
AGED 65, S/O. CHELLAPPAN PILLAI,
VIMALALAYAM PERINADU P.O,
KOLLAM-, PIN - 691601
BY ADV ARUN BABU
RESPONDENTS/PETITIONER/
PETITIONER & STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 AMRITHA S VIJAYAN
AGED 23 YEARS, D/O VIJAYAN PILLAI,
VIJAY NIVAS,KUZHIYAM ,
CHEMMAKKADU P.O,
PERINADU VILLAGE, KOLLAM
REPRESENTED BY HER POWER OF ATTORNEY
VIJAYAN PILLAI , AGED 65,
VIJAY NIVAS,KUZHIYAM,
CHEMMAKKADU P.O, PERINADU VILLAGE,
O.P.(Crl.) No. 240 of 2024
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KOLLAM, PIN - 691601
BY ADVS.
BINU GEORGE
HEMALATHA(K/1287/1999)
AMANTA MATHEW(K/001960/2022)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
05.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(Crl.) No. 240 of 2024
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JUDGMENT
This original petition has been filed to quash Ext.P10 order passed by the Family Court, Kollam.
2. The petitioner is the husband of respondent No.2. The respondent No.2 filed a maintenance case as M.C.No.326 of 2021 before the Family Court against the petitioner claiming maintenance. The respondent No.2 has also filed an application for interim maintenance as CMP No. 69 of 2023. The Family Court allowed the said application and directed the petitioner to pay monthly maintenance of Rs.9,000/- from the date of the petition to the respondent No.2. Though the petitioner challenged the said order before this Court, it was unsuccessful. Thereafter, respondent No.2 filed Crl.M.P.No.154 of 2024 to strike off the defence of the petitioner on the ground that the petitioner has not complied with the interim order of maintenance passed by the Family Court. The petitioner has filed an application as Crl.M.P.No. 155 of 2024 to cancel the order of interim maintenance. Both applications were O.P.(Crl.) No. 240 of 2024 ..4..
2025:KER:9996 considered by the Family Court together and a common order was passed. Crl.M.P.No. 155 of 2024 was dismissed and Crl.M.P.No.154 of 2024 was allowed. The defence of the petitioner was ordered to be struck off unless he pays the arrears of maintenance within twelve days. The said common order is under challenge in this original petition.
3. I have heard Sri.Arun Babu, the learned counsel for the petitioner and Smt.Hemalatha, the learned counsel for the respondent No.2.
4. The learned counsel for the petitioner submitted that an order for striking off defence cannot be passed in a proceedings under Section 125 of Cr.P.C. and hence the impugned order in Crl.M.P.No.154 of 2024 is not legally sustainable. The learned counsel further submitted that even if it is assumed that the Family Court has power to strike off the defence in a proceedings under Section 125 of Cr.P.C., the striking off defence could be done only as a last resort and such a situation is not there in this case. The learned counsel for the O.P.(Crl.) No. 240 of 2024 ..5..
2025:KER:9996 2nd respondent on the other hand supported the impugned order.
5. A reading of the dictum laid down in Rajnesh v. Neha and Another [2020 (6) KHC 1] by the Supreme Court makes it clear that the defence can be struck off for non payment of interim order of maintenance in a proceedings under Section 125 of Cr.P.C. The interim order of maintenance was passed by the Family Court as early as on 12/11/2021, but the petitioner did not pay any amount in compliance with the said order. Though he challenged the said order before this Court, it was not successful. The Family Court, after evaluating the entire facts and circumstances of the case, came to the conclusion that the act of the petitioner in not complying with the interim order of maintenance amounts to willful disobedience and contumacious one since his intention is only to protract or delay the matter. The said finding of the Family Court got fortified by the subsequent acts of the petitioner. In the impugned order, though Family Court gave twelve days' O.P.(Crl.) No. 240 of 2024 ..6..
2025:KER:9996 time to the petitioner to pay the entire arrears of interim maintenance, the petitioner instead of complying the same, has chosen to challenge it before this Court. When this original petition came up for hearing on last posting date, this Court gave an option to the petitioner to deposit the entire arrears of maintenance, so that the impugned order striking off the defence can be set aside and an opportunity could be given to him to contest the maintenance case on merits. The learned counsel for the petitioner took time to get instruction from the petitioner and after getting instruction, today, chose to argue the case on merits instead of depositing the entire arrears of maintenance. This act of the petitioner also shows his willful disobedience to comply with the interim order of maintenance passed by the Family Court. For these reasons, I find no reason to interfere with the order passed in Crl.M.P.No. 154 of 2024. Since, the interim order of maintenance passed by the Family Court has been confirmed by this Court, there is no question of considering the prayer in Crl.M.P.No. 154 of 2024. O.P.(Crl.) No. 240 of 2024
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6. However, I am inclined to grant a final chance to the petitioner to deposit the entire arrears of maintenance. The total arrears of maintenance would come to Rs.3,33,000/-. If the petitioner deposits the said amount before the Family Court within fifteen days from today, the impugned order striking off the defence shall stand set aside. The Family Court thereafter shall proceed with the M.C in accordance with law. If the petitioner fails to deposit the amount as afore-mentioned, the impugned order shall stand confirmed.
With the above observations, the Original Petition is dismissed.
Sd/-
DR. KAUSER EDAPPAGATH JUDGE APA O.P.(Crl.) No. 240 of 2024 ..8..
2025:KER:9996 APPENDIX OF OP(CRL.) 240/2024 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE POWER OF ATTORNEY DATED 04/12/2021 EXECUTED BY PETITIONER EXHIBIT P2 THE TRUE COPY OF THE PETITION IN MC 326/2021 DATED 12/11/2021, FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P3 THE TRUE COPY OF CMP 69/2023 IN MC 326/2021 DATED 12/11/2021, FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P4 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE INTERIM MAINTENANCE PETITION IN MC 326/2021 DATED 25/05/2022, FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT DATED 02/11/2023 IN OP (CRL) 589/2023 OF THIS HONBLE COURT EXHIBIT P6 THE TRUE COPY OF THE RELEVANT PAGES OF CRL MP 152/ 2024 IN MC 326/2021 DATED 17/02/2024 FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P7 THE TRUE COPY OF THE CRLMP 155 /2024 IN MC 326/2021 DATED 07/02/2024, FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P8 THE TRUE COPY OF THE CRL MP154 ./2024 IN CMP 199/2023 IN MC 326/2021 DATED 29/02/2024, FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P9 THE TRUE COPY OF THE OBJECTION DATED 01/03/2024 IN MC 326/2021 FILED BEFORE THE FAMILY COURT KOLLAM EXHIBIT P10 THE CERTIFIED COPY OF THE COMMON ORDER DATED 02/03/2024 IN CRLMP 154/2024 AND CRLMP 155/2024 IN MC 326/2021 OF THE FAMILY COURT KOLLAM