N.Arivazhagan vs S.Poorni
2023 Latest Caselaw 843 Mad

                                                                              C.M.A.No.2390 of 2022

                                  THE HIGH COURT OF JUDICATURE AT MADRAS
                                                    DATED: 20.01.2023
                                                        CORAM:
                           THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
                                             AND
                     THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

                                                  C.M.A.No.2390 of 2022
                                                           and
                                                  C.M.P.No.19402 of 2022

                     N.Arivazhagan                                                  ...Appellant

                                                           Vs.

                     S.Poorni                                                      ...Respondent

                     Prayer: Civil Miscellaneous Appeal filed under Section 19 of the Family
                     Court Act, against the order passed in I.A.No.6 of 2021 in H.M.O.P.No.1392
                     of 2017 on the file of the Additional Principal Family Court Judge at
                     Coimbatore dated 29.03.2022 and consequently allow the petitioner to
                     participate in the trial.


                                  For Appellant      : Ms.R.Pushpalatha for
                                                              Mr.C.Deivasigamani

                                  For Respondent     : Mr.K.Balasubramaniam




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https://www.mhc.tn.gov.in/judis
                                                                                    C.M.A.No.2390 of 2022

                                                      JUDGMENT

(Judgment of the Court was made by R.SUBRAMANIAN, J.)

The appeal is against the order allowing an application to strike

out the defence for non-payment of maintenance. The appellant, who is the

husband suffered an order for payment of maintenance at Rs.6,000/- per

month in I.A.No.1 of 2019. The same was challenged in C.M.A.No.2844 of

2021 before this Court and the said appeal was dismissed on 07.01.2022.

Upon dismissal of the appeal, the wife filed an application seeking to strike

out the defence on the ground that the order for interim maintenance has not

been complied with.

2.The said application was resisted on the ground that a review

petition has been filed seeking review of the order passed in

C.M.A.No.2844 of 2021. The family Judge rejected the said contention and

ordered striking out the defence. This appeal is directed against the said

order striking out the defence.

3.The learned counsel appearing for the appellant would

vehemently contend that the order is a non-speaking order and the remedy

of the respondent wife is to seek execution of the order for maintenance

https://www.mhc.tn.gov.in/judis C.M.A.No.2390 of 2022

under Section 28-A of the Hindu Marriage Act and not to seek strike out the

defence. The power of the Court to strike out the defence for non-payment

of maintenance is undisputable. There is long line of precedents to support

the view of the Family Court that the husband cannot defend a main

proceeding without paying the maintenance ordered by the Court.

4.The contention of the learned counsel appearing for the

appellant that 28-A should be resorted to cannot be accepted. That would

amount to giving a premium to the defaulter. We are therefore, convinced

that the Family Court cannot be faulted for striking out the defence for non-

payment of maintenance. We do not see any merit in the appeal. This Civil

Miscellaneous Appeal fails and it is accordingly, dismissed. No costs.

Consequently, connected miscellaneous petition is closed.

                                                                      (R.S.M.,J.)    (S.S.K.,J.)
                                                                            20.01.2023
                     kkn

                     Internet:Yes
                     Index:No
                     Speaking

https://www.mhc.tn.gov.in/judis C.M.A.No.2390 of 2022

R.SUBRAMANIAN, J.

and SATHI KUMAR SUKUMARA KURUP, J.

KKN

To:-

The Additional Principal Family Court, Coimbatore.

C.M.A.No.2390 of 2022 and C.M.P.No.19402 of 2022

20.01.2023

https://www.mhc.tn.gov.in/judis