Kerala High Court
Shyju.P.K vs Nadeera on 5 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
MAT.APPEAL NO. 173 OF 2015
AGAINST THE JUDGMENT IN OP 304/2012 OF FAMILY COURT,
ALAPPUZHA
APPELLANT/RESPONDENT:
SHYJU.P.K
AGED 41 YEARS
S/O.KARTHIKEYAN, PUNNAVELIL VEEDU, CHERTHALA
MUNICIPAL WARD-20, CHERTHALA TALUK,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENTS/PETITIONERS:
1 NADEERA, AGED 36 YEARS
D/O.MOHANAN, MATTATHIL VEEDU, CHERTHALA MUNICIPAL
WARD NO.10, CHERTHALA TALUK,
ALAPPUZHA DISTRICT-688 524.
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*2 NIKITHA, AGED 12 YEARS
(MINOR), D/O.NADEERA, MATTATHIL VEEDU, CHERTHALA
MUNICIPAL WARD NO.10, CHRTHALA TALUK, ALAPPUZHA
DISTRICT-688 524. (MINOR REPRESENTED BY HER
MOTHER, 1ST RESPONDENT NADEERA). (MAJOR)
(*THE 2ND RESPONDENT IS RECORDED AS MAJOR AS PER
ORDER DATED 28/9/2021 VIDE IA NO.4/2021)
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.JOBY JACOB PULICKEKUDY
M.R.ARUNKUMAR
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 28.9.2021, THE COURT ON 05.10.2021 DELIVERED THE
FOLLOWING:
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"C.R."
J U D G M E N T
Dated this the 5th day of October, 2021
Kauser Edappagath, J.
Whether an application for maintenance pendente lite u/s
24 of the Hindu Marriage Act, 1955 would lie in a proceeding
other than under the said Act?
Under what circumstances can the Family Court strike off
the defence for non compliance of the order to pay pendente lite
maintenance?
These are the questions that arise for consideration in this
matrimonial appeal.
2. The husband is the appellant. The wife and minor
daughter are the respondents. The respondents filed OP
No.304/2012 at the Family Court, Alappuzha (for short 'the court
below') claiming return of gold ornaments, patrimony and
maintenance. The appellant appeared at the court below and
filed objection statement. During the pendency of the original
petition, the respondents filed IA No.1119/2012 invoking S.24 of
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the Hindu Marriage Act,1955 and S.151 of the Code of Civil
Procedure,1908 (for short "CPC") claiming pendente lite
maintenance from the appellant @ `7,000/- and `8,000/-
respectively. The court below allowed the said application and
directed the appellant to pay maintenance @ `5,000/- per month
to the respondents from the date of the application till the
disposal of the OP. Since the appellant failed to comply with the
said order, the respondents filed IA No.918/2014 invoking S.151
of CPC to strike off the defence of the appellant. The said
application was allowed and the defence of the appellant was
struck off. Thereafter, the 1st respondent filed proof affidavit and
marked Exts.A1 to A3 documents. Relying on the ex parte
evidence given by the respondents, original petition was allowed
as per the judgment dated 8th October, 2014. The appellant was
directed to return 38½ sovereigns of gold ornaments and a sum
of `1,80,000/-. The appellant was also directed to pay
maintenance to the respondents @`5,000/- each per month from
5/3/2012 onwards. The said judgment is under challenge in this
appeal.
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3. We have heard Sri.S.Sanal Kumar, the learned counsel
for the appellant and Sri.K.S.Madhusoodanan, the learned counsel
for the respondents.
4. The learned counsel for the appellant submitted that
the order for payment of pendente lite maintenance passed by
the court below was without jurisdiction and hence, the defence
of the appellant ought not to have been struck off. The counsel
further submitted that the court below even without giving an
opportunity to the appellant to show cause or make the payment,
hurriedly disposed of I.A. No. 918/2014. The learned counsel for
the respondents supported the impugned judgment
5. Order VI Rule 16 of CPC deals with striking out of
pleadings. The power under Order VI Rule 16 is intended to be
exercised in three specific circumstances. They are:-
(i) When pleadings are unnecessary, scandalous,
frivolous or vexatious; or
(ii) If the pleadings tend to prejudice, embarrass or delay
the fair trial of the suit; or
(iii) if it is otherwise an abuse of the process of the court.
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Unless any of the circumstances referred above are present, the
court cannot strike off the defence under Order VI Rule 16.
However, the various High Courts including the Kerala High Court
[see Mangalam v. Velayudhan Asari (1992 (2) KLT 553)] has
held that the Court has inherent power u/s 151 of CPC to strike off
the defence on failure to pay pendente lite maintenance ordered
by the Court. The Apex Court recently referring to the judgments
of various High Courts on the point upheld the power of the Court
to strike off the defence if there was non compliance of the order
of payment of interim maintenance. However, it was held that
striking off the defence is an order which ought to be passed in
the last resort, if the court finds fault to be wilful and
contumacious, particularly to a dependent unemployed wife and
minor child. It was also observed that contempt proceedings for
wilful disobedience may be initiated before the appropriate
court. Thus, the inherent power under S.151 of CPC to strike off
the defence on failure to pay pendente lite maintenance ordered
by the court can be invoked only in a case where the default is
found to be wilful and contumacious, that too to an unemployed
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wife and minor child.
6. IA No.1119/2012 claiming interim maintenance has
been filed by the respondents u/s 24 of the Hindu Marriage Act,
1955 and S.151 of CPC. S.24 of the Hindu Marriage Act, 1955
reads as follows:
"24. Maintenance pendente lite and expenses of
proceedings. Where in any proceeding under this Act it
appears to the court that either the wife or the husband, as
the case may be, has no independent income sufficient for
her or his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the
husband, order the respondent to pay to the petitioner the
expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner's
own income and the income of the respondent, it may seem
to the court to be reasonable:
[Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during
the proceeding, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the
wife or the husband, as the case may be."
7. A reading of the above provision would show that an
application for maintenance pendente lite and expense of the
proceedings would only lie in a proceedings under the Hindu
Marriage Act, 1955. Evidently, OP No.304/2012 filed by the
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respondents claiming return of gold ornaments, patrimony and
maintenance is not a petition under any of the provisions of the
Hindu Marriage Act, 1955. The said petition has been filed u/s
7(1) Explanation (c) and (f) of the Family Courts Act, 1984. No
application for maintenance pendente lite u/s 24 of the Hindu
Marriage Act, 1955 would lie in a proceeding other than under
the Hindu Marriage Act, 1955. Thus, IA No.1119/2012 is not
maintainable u/s 24 of the Hindu Marriage Act, 1955. The
respondents have also quoted S.151 of CPC. S.151 recognises the
inherent power of the court "to make such orders as may be
necessary for the ends of justice, or to prevent abuse of the
process of the court." The inherent powers saved by S.151 of CPC
are with respect to the procedures to be followed by the court in
deciding the cause before it. The said powers cannot extend to
matters other than procedural. The inherent powers recognized
by S.151 cannot be exercised over the substantive right of the
parties. Specific powers have to be conferred on the courts for
passing orders affecting the substantive right of the parties. The
Apex Court in Padam Sen v. State of Uttar Pradesh (AIR 1961
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SC 218) has clearly held that the exercise of powers u/s 151 of
the Code are not powers over the substantive right of the parties.
Hence, S.151 of CPC also cannot be invoked to maintain the
application. There is no provision in the Hindu Adoptions and
Maintenance Act, 1956 for granting maintenance pendente lite as
provided for in S.24 of the Hindu Marriage Act, 1955. At any rate,
no argument has been advanced before us to sustain the order
under the provisions of the Hindu Adoptions and Maintenance
Act, 1956. Hence, we are of the view that the order in IA
No.1119/2012 passed by the court below is without jurisdiction.
The order in IA No.918/2014 is only a consequential order to IA
No.1119/2012. When the original order is found to be without
jurisdiction, the consequential order cannot be sustained.
8. As stated already, the defence can be struck off for
non compliance of an order for payment of pendente lite
maintenance only as a last resort and if the default is found to be
deliberate and wilful. Needless to say, to arrive at such a
conclusion, sufficient opportunity has to be given to the person
against whom the order for payment of maintenance has been
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passed. Before striking off the defence for non compliance of an
order of pendente lite maintenance, an opportunity has to be
given to show cause why the defence should not be struck off or
reasonable time has to be given to clear the arrears of
maintenance ordered. The order in IA No.1119/2012 was passed
on 11/6/2014 and the order in IA No.918/2014 was passed on
20/9/2014. There was hardly three months gap in between these
orders. A perusal of the order in IA No.918/2014 would show that
no opportunity was given to the appellant to show cause why his
defence should not be struck off. No reasonable time was also
granted for payment of the arrears of maintenance ordered.
Hence, on this ground also, the impugned order cannot be
sustained.
For the reasons stated above, we hold that the Court below
committed illegality and irregularity in striking off the defence of
the appellant. The suit was decreed solely based on the evidence
given by the 1st respondent. We are of the view that an
opportunity has to be given to the appellant to contest the
petition on merits. Accordingly, we allow the appeal and set
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aside the impugned judgment. OP No.304/2012 is remanded to
the court below for fresh disposal. The parties shall appear before
the court below on 1/11/2021. The court below shall give an
opportunity to both parties to adduce evidence and thereafter
dispose of the petition on merits in accordance with law. Since
the matter is of the year 2012, the court below shall take every
effort to dispose of the petition as early as possible. The parties
shall bear their respective costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Rp
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APPENDIX
APPELLANT'S EXHIBITS: NIL
RESPONDENT'S EXHIBITS
ANNEXURE A TRUE PHOTOCOPY OF BIRTH CERTIFICATE
ISSUED BY THE REGISTRAR, BIRTH, DEATH &
MARRIAGE, CHERTHALA MUNICIPALITY,
ALAPPUZHA
//True Copy//
PS to Judge
