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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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
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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
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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'
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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.
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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
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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
