Hari B vs Hari B
2021 Latest Caselaw 2210 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

            THE HONOURABLE MRS. JUSTICE MARY JOSEPH

  WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                      RPFC.No.129 OF 2020

 AGAINST THE ORDER/JUDGMENT IN MC 324/2017 DATED 21-01-2020 OF
                   FAMILY COURT, MALAPPURAM


REVISION PETITIONER/RESPONDENT IN MC:

             HARI B.,
             AGED 33 YEARS
             S/O. BALAKRISHNAN NAMBIYAR, MANIYALA HOSUE, NEAR
             110 KV SUB STATION, P.O. PUTHUR, VADAKARA,
             KOZHIKODE DISTRICT.

             BY ADV. SRI.T.M.RAMAN KARTHA

RESPONDENTS/PETITIONERS IN MC:

      1      HARSHA S.
             AGED 32 YEARS
             D/O. P.D.SUBASH, "SARANG", PULAMANTHOLE P.O.,
             PALOOR, PERINTHALMANNA VIA, MALAPPURAM DISTRICT,
             PIN-679 323.

      2      SIVADA
             AGED 4½ YEARS,
             D/O. HARI B., "SARANG", PULAMANTHOLE P.O., PALOOR,
             PERINTHALMANNA VIA, MALAPPURAM DISTRICT, PIN-679
             323 (MINOR REPRESENTED BY MOTHER IST RESPONDENT).

             R1-2 BY ADV. SRI.P.VENUGOPAL (1086/92)

     THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 29-09-2020, THE COURT ON 20-01-2021 PASSED THE FOLLOWING:
 R.P.(FC) No. 129 of 2020
                                  -:2:-

                                                             C.R.

                               ORDER

Dated this the 20th day of January, 2021

Order dated 21.01.2020 of Family Court, Malappuram in

M.C.No.324 of 2017 is under challenge in the revision on hand.

The revision petitioner is the respondent and the respondents in

the revision are the petitioners in the M.C on the files of Family

Court, Malappuram. By the impugned order, the Family Court

has directed the revision petitioner to pay monthly maintenance

at the rate of Rs.8,000/-and Rs.4,000/- respectively to the 1 st

and 2nd petitioners with effect from 24.12.2019. The above order

is taken up in challenge by the respondent.

2. The facts of the case relevant for disposal of the

revision are stated briefly hereunder:

For clarity, the parties to the revision will hereinafter be

referred to as the petitioners and the respondent in accordance

with their status in the M.C. before the Family Court.

The 1st petitioner and the respondent got married on

20.04.2014 and the 2nd petitioner was born on 23.06.2016. R.P.(FC) No. 129 of 2020

The respondent neglected to maintain the petitioners since July,

2016. The respondent was working as an Ayurvedic Doctor

under Central Government at Mahe and has a monthly income

of Rs.50,000/-. Therefore, claiming Rs.20,000/- and

Rs.10,000/- respectively as monthly maintenance to the 1 st and

2nd petitioners, the M.C. was filed before the Family Court,

Malappuram.

3. The respondent in the counter statement filed by

him had denied the averments of the petitioners and raised

defences of his own.

4. The respondent had filed O.P.No.765 of 2017 seeking

for a decree for divorce. The 1 st petitioner had filed

I.A.No.1038 of 2018 in the above O.P. seeking for interim

maintenance under Section 24 of the Hindu Marriage Act. I.A

was allowed and the counter petitioner was directed to pay

Rs.15,000/- as monthly maintenance to the petitioners therein.

The counter petitioner did not comply with the order passed as

above and therefore, the 1st petitioner had filed C.M.P.No.424 of

2019 seeking to strike off the defence of the counter petitioner.

A petition of the nature was also filed in O.P.No.765 of 2017. R.P.(FC) No. 129 of 2020

The Family Court has directed the counter petitioner on

31.12.2019 to clear off the arrears. It was further directed that

his defence in the case would be struck off on failure to clear

off the arrears. The counter petitioner failed to comply with the

direction and thus his defence was struck off by the court. In

the M.C, the 1st petitioner has filed proof affidavit. Since the

defence was struck off, the Family Court solely relying on the

on the facts sworn to by the 1 st petitioner in the proof affidavit,

found the 1st and 2nd petitioners entitled to get monthly

maintenance and awarded Rs.8,000/- and Rs.4,000/-

respectively as the quantum payable to them.

5. According to Sri.T.M.Raman Kartha, the learned

counsel for the respondent, the Family Court is erred in striking

off the defence of the respondent in the M.C. According to him,

the defence of the respondent in the M.C was struck off by the

Family Court arbitrarily without adverting to the facts and the law

applicable in the case properly. According to him, the defence

was struck off for non-compliance of the respondent of an interim

order directing payment of interim maintenance passed in a civil

case among the same parties pending before the court. R.P.(FC) No. 129 of 2020

6. According to the learned counsel the Code of

Criminal Procedure does not provide for authority to strike off

defence in criminal cases. The Family Court while dealing with

a claim for maintenance under Section 125 Cr.P.C is exercising

jurisdiction of as a criminal court and as laid down by a Single

Bench of this Court in Sakeer Hussain v. Naseera [2016 (4)

KLT 186], Code of Criminal Procedure does not confer a power

identical to that of a civil court to strike off the defence, on its

order being flouted by the party liable to obey it. According to

him, inherent power under Section 151 of the Code of Civil

Procedure also cannot be exercised by a court while exercising

jurisdiction under Section 125 Cr.P.C. Based on the

submissions, the impugned order is sought to be set aside.

7. Sri.Venugopal, the learned counsel has contended on

the contrary that the Family Court is empowered to strike off

defences of the respondent who has defaulted the payment of

maintenance as directed by a Court. He has relied on the

dictum of Division Benches of this Court in Mahesh v. Roopa

[2017 KHC 598] and Muraleedharan v. Jincy [2018(4) KHC

639] to fortify his contention. According to him, when the R.P.(FC) No. 129 of 2020

Division Bench in Mahesh supra has held that 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 contumacious conduct on

the part of the defaulting party and when the default is brought

to the notice of the Family court, it is always open for it to

consider whether the person defaulted is entitled to defend the

proceedings or whether he has locus standi to defend the

proceedings. It has been further held in the case that inherent

power under Section 151 of Code of Civil Procedure can be

invoked to strike off the defence as a threat to unscrupulous

litigants who do not respect the majesty of the court and they

will be doing so at their peril. According to him, in

Muraleedharan supra the Division Bench has held that failure

to pay maintenance can be a ground to strike off defence of

husband in respect of a proceeding instituted by the wife for

return of gold ornaments and money.

8. According to the learned counsel, the dictum in Sakeer

Hussain is wrong and is not liable to be followed in view of the

contrary stand taken by the Division Bench in the cases as R.P.(FC) No. 129 of 2020

above. According to him, the impugned order is perfectly right

when viewed in the backdrop of the view taken by the Division

Benches in the cases referred to supra and is only to be

confirmed.

9. In the backdrop of the arguments raised by the rival

parties as above it is incumbent upon this court to have a

discussion on the cases referred to, to see whether a view

contrary to the one in Mahesh and Muraleedharan supra has

been taken by the Single Bench in Sakeer Hussain supra.

10. The factual matrix in each case deserves discussion in

the above context.

In Muraleedharan supra, O.P. (HMA) No.379/1987 was

filed by the petitioners before the II Additional Sub Court,

Thiruvananthapuram for dissolution of marriage under Section

13 of the Hindu Marriage Act. Divorce was sought on the ground

of cruelty. Pendete lite, the petitioner (wife) filed I.A.

No.880/1989, for directing the counter petitioner to pay

maintenance at the rate of Rs.300/- per mensum and Rs.500/-

towards the litigation expenses. The court below allowed the

petition and granted the relief as prayed for. This Court has R.P.(FC) No. 129 of 2020

modified the order by enhancing the rates of monthly

maintenance payable. Thereafter, I.A.No. 3603/1991 was filed

seeking to strike off the defence of the counter petitioner in

O.P. (HMA) No.379/1987. A sum of Rs.6,300/- was due from

the counter petitioner as arrears of maintenance and he

deliberately committed default in payment of the same. The

court below was declined to strike off the counter petitioner's

defence in the Original Petition and thereby dismissed the

application. The revision preferred against the order was allowed

and the Court held:

"7. In the light of the above decisions, I hold that the order passed by the learned Subordinate Judge in I.A. No.3603 of 1991 dated 07.11.1991 is clearly illegal and perverse. The court below had inherent jurisdiction under S.151 of the Code of Civil Procedure, to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. Instead of exercising the jurisdiction so vested in the court, the lower court has thrown its hands in despair and has offered a gratuitous legal opinion to the revision petitioner to file an execution petition, which, as stated by Banerjee, J in Anita Karmokar's case (AIR 1962 Cal.88), is not an easygoing highway, and is beset with all imponderables and practical difficulties.

8. The court below has failed to exercise the jurisdiction vested in it under law. I, therefore, set aside the order passed by R.P.(FC) No. 129 of 2020

the court below in I.A. No.3603 of 1991 in O.P.(H.M.A) No.379 of 1987 dated 07.11.1991 and allow this revision. This is a fit case in which, for deliberate non-payment of Rs.5,200/- due towards the maintenance and litigation expenses to the revision petitioner, the defence of the respondent(husband) should be struck off. I hereby

direct that the defence of the respondent be struck off accordingly."

11. In Mahesh supra O.P. No.801/2014 has been filed by

the respondent herein for divorce. Pending the original

petition, an application was filed as I.A. No.3799/2016 to strike

off the defence of the petitioner under O.6 of R.16 read with

S.151 of the Code of Civil Procedure. Ext.P3 is the said

application wherein it is stated that direction had been issued

by the Family Court in M.C No.198/2002 to pay maintenance.

Since maintenance was not being paid, M.P.

Nos.85/2014,144/2015 and 319/2016 have been filed and the

total amount payable as arrears would come to Rs.1,30,000/-.

It is, alleging that the petitioner herein was deliberately

withholding the payment of arrears of maintenance though he

was capable of paying the same, that the application was filed.

12. In the counter affidavit filed as Ext.P4, petitioner

contended that the M.C proceedings have been taken under

S.125(3) of the Cr.P.C and if there is non-compliance, the R.P.(FC) No. 129 of 2020

remedy available is to proceed under Section 128. It was further

contended that the provision under Order VI Rule 16 cannot also

be invoked for the above purpose.

13. The Family Court placing reliance on the judgment in

Mangalam v. Velaydan Achari, 1992 KHC 396 : 1992(2) KLT

553 : 1992(2) KLJ 912 : ILR 1993(1) Ker.97 : AIR 1993 Ker.

181 : 1992(3) Cur.CC 375 : 1993 Marri.LJ 476 held that if there

is failure to pay arrears of maintenance, the Court can strike off

the defence by invoking its inherent power under S.151 C.P.C

and accordingly allowed the application stating that the

respondent has no locus standi to contest the matter.

14. It is worthy to have a discussion on the factual matrix

of Sakeer Hussain also hereunder :

The wife laid an application under S.125 Cr.P.C seeking

maintenance. The respondent appeared and filed an objection

contesting the claim made by the wife and children. It was

specifically contended that due to loss of eye sight, he was

unable to maintain himself. Pending the proceedings, the

Family Court ordered interim maintenance to the three

children. On 25.11.2014, noting that the interim order of R.P.(FC) No. 129 of 2020

maintenance has not been complied with, the court below by

Annexure-A1 order struck off the defence of the husband. The

case was posted for hearing ex parte, since there was no

representation for the husband. Later, applications for review

and setting aside the ex parte order were filed, which were

dismissed by separate orders. Thereafter, the court below, by

the impugned order directed the husband to pay maintenance

to the wife and children." This is assailed in the proceedings

and the court held that the Family Court, in exercise of its

power under Section 125 Cr.P.C has no power to strike off the

defence.

15. This Court has relied on Section 10 of Family Court

Act, 1984 to hold that there is a suitable distinction of exercise

of procedural laws applicable to the Family Court while

adjudication of issues covered by different statues and held as

follows :

"Hence, the Family Court, in exercise of the power under S.125 of the Code of Criminal Procedure, cannot exercise a jurisdiction to strike off the defence which is not contemplated under the statute. Consequently, the decision in Savitri's case (cited supra) is only to be held as the correct law. However, that will not preclude courts from exercising such implied power R.P.(FC) No. 129 of 2020

which are essential and concomitant with the main powers and object of statute. In the light of the above discussion, the decision of the Family Court to strike off the defence and thereafter to pass an order of maintenance is not legally sustainable and is liable to be set aside."

16. The factual situation in Sakeer Hussain and the one on

hand is identical. In the case on hand M.C. No.324/2017

was filed by the petitioners before the Family Court,

Malappuram seeking for monthly maintenance at the rates of

Rs.20,000/- and Rs.10,000/- respectively in favour of them.

The respondent had filed counter statement denying the

averments of the petitioners in the M.C and raising his

defences. The respondent had also filed O.P. No.765/2017

seeking for a decree for divorce. The 1st petitioner had filed

I.A.No.1038 of 2018 in the above O.P. seeking for interim

maintenance under Section 24 of the Hindu Marriage Act. I.A

was allowed and the counter petitioner was directed to pay

Rs.15,000/- as monthly maintenance to the petitioners therein.

The counter petitioner did not comply with the order passed as

above and thereupon the 1 st petitioner had filed C.M.P.No.424

of 2019 seeking to strike off the defence of the counter R.P.(FC) No. 129 of 2020

petitioner. A petition of the nature was also filed in O.P.No.765

of 2017. The Family Court has directed the counter petitioner

on 31.12.2019 to clear off the arrears. It was further directed

that his defence in the case would be struck off on failure to

clear off the arrears. The counter petitioner failed to comply

with the direction and thus his defence was struck off by the

court. In the M.C, the 1st petitioner has filed proof affidavit.

Since the defence was struck off, the Family Court solely

relying on the on the facts sworn to by the 1 st petitioner in the

proof affidavit found the 1 st and 2nd petitioners entitled to get

monthly maintenance and awarded Rs.8,000/- and Rs.4,000/-

respectively as the quantum payable to them.

17. The context in the case on hand is identical to the one

in Sakeer Hussain Supra for the reasons that the jurisdiction

to strike off the defences of the respondent has been exercised

by the Family Court in an application under Section 125 Cr.P.C

whereas in the cases dealt with by the Division Benches, the

power to strike off defences has been exercised by the Family

Court in seizin of respective original petitions seeking for

divorce and the court in such cases was functioning as a Civil R.P.(FC) No. 129 of 2020

Court. The power to strike off defences invoking the

jurisdiction under Order VI Rule 16 CPC or under Section 151

CPC is available only to courts exercising civil jurisdiction and it

is alien to Criminal Courts. Section 10 of the Family Courts Act,

1894 is apposite extraction hereunder :

"10. Procedure generally.--(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by

the one party and denied by the other. "

18. Therefore all matters liable to be entertained by the

Family Court under Section 7 of the Family Courts Act, 1894 R.P.(FC) No. 129 of 2020

except proceedings under Chapter IX of the Code of Criminal

Procedure shall be entertained as a civil court in accordance

with the procedure prescribed by the Code. Claims for monthly

maintenance under Section 125 Cr.P.C are dealt with under

Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974)

and while entertaining those, the Family court has to function

as a criminal court in accordance with the procedure prescribed

under the Code of Criminal Procedure.

19. In the cases dealt with by the Division Benches the

power to strike off defences has been invoked and exercised by

the Family Court in exercise of its civil jurisdiction whereas in

Sakeer Hussain, the defence of the respondent has been

struck off by the Family Court in exercise of jurisdiction as a

criminal court under Section 125 Cr.P.C.

20. The procedures while functioning as a criminal court

are well provided for under various provisions of the Code of

Criminal Procedure and it is manifestly clear that a provision

akin to Order VI Rule 16 or Section 151 C.P.C empowering a

court acting as a criminal court is not there. Therefore, the

Family Court ought not to have struck off the defence of the R.P.(FC) No. 129 of 2020

respondent in a proceeding under Section 125 Cr.P.C pending

on its file while exercising criminal jurisdiction, evenif it is

established that the respondent defaulted the payment of

monthly maintenance ordered by the Court willfully. A criminal

court is devoid of jurisdiction to strike of defences taken by the

respondent in the M.C for the reason that he has disobeyed the

direction issued to pay interim maintenance by the Family

Court, pending disposal of Original Petition seeking divorce. It

is revealed from the narration of the facts in the case on hand

that an application seeking to strike off the defences of the

respondent has also been filed in OP(HMA) pending on the

Family Court's file. O.P.(HMA) being purely a civil proceeding,

the Family Court can exercise only Civil jurisdiction and there is

nothing wrong for it to pass appropriate orders therein. But,

the impugned order ought not to have been passed by the

Family court exercising jurisdiction under Section 125 Cr.P.C

being purely criminal in nature.

21. There is absolutely no merit in the argument

advanced by Sri.Venugopal that the stand taken by the Division

Benches in Mahesh and Muraleedharan being contrary to the R.P.(FC) No. 129 of 2020

one taken by the Single Bench in Sakeer Hussain, the latter

decision cannot be followed, is repelled being devoid of merits.

In fact the Division Bench had reiterated the distinction in the

exercise of jurisdiction of the Family Court provided by the

Family Court's Act while dealing with claims for maintenance

under Section 125 Cr.P.C and claims other than that.

22. The Division Bench has upheld that the power to

strike off defences can be exercised by the Family court in

cases of civil nature handled by it when the wilfull default of the

respondent to comply with the direction to pay maintenance is

established.

23. Therefore, this court has no hesitation to hold that the

Family Court has gone wrong in striking off the defences of the

respondent in the M.C for the latter's willful disobedience of a

direction to pay interim maintenance issued by it in

O.P(H.M.A), since the jurisdiction exercised by the court being

purely criminal and exercise of jurisdiction either under Order

VI Rule 16 or Section 151 CPC being alien to it.

24. The impugned order fixing monthly maintenance at

the rates of Rs.8,000/- and Rs.4,000/- respectively to R.P.(FC) No. 129 of 2020

petitioners 1 and 2 and directing the respondent to pay

accordingly to them with effect from 24.12.2019 after striking

off the defences of the respondent and denying him with an

opportunity to cross examine the petitioner is per se illegal and

is liable to be reversed.

In the result R.P.(F.C) stands allowed. The order passed

in M.C.No.324 of 2017 by Family Court, Malappuram on

21.01.2020 is set aside. The order, striking off defence of the

revision petitioner is also set aside. The parties to this revision

are directed to attend the Family Court, Malappuram on

08.02.2021 to enable the Family Court to pursue with

M.C.No.324 of 2017 afresh. The respondent in the M.C shall be

granted with reasonable opportunity to adduce evidence afresh.

M.C. being related to the year 2017, the Family Court,

Malappuram shall see that it is disposed of within a period of

one month from the date of receipt of a certified copy of this

order.

Sd/-

MARY JOSEPH JUDGE NAB/ttb