Kerala High Court
Hari B vs Harsha S on 20 January, 2021
Author: Mary Joseph
Bench: Mary Joseph
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 -:3:-
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 -:4:- 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 -:5:-
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 -:6:- 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 -:7:- 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 -:8:- 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 -:9:- 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 -:10:- 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 -:11:- 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 -:12:- 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 -:13:- 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 -:14:- 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 -:15:- 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 -:16:- 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 -:17:- 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 -:18:- 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