1 Rule. Rule made returnable forthwith. By consent of parties, heard finally at the stage of admission.

2 Judge, Court No.3 of the Family Court, Bandra, Mumbai by its order dated 18.11.2011 has allowed the application of the respondent-wife for striking off the defence on the ground of non compliance of the Court’s order of maintenance.

3 The petitioner is a husband of the respondent. They got married on 3.5.1983. However, the marriage did not sail smooth and parties approached the Court by filing petitions against each other. Wife filed petition for divorce bearing No.A-1796 of 1997 under Section 13(1) IA of Hindu Marriage Act of 1955. Thereafter the petitioner-husband also filed petition for divorce on the ground of cruelty which is numbered as A-1803/1998. Proceedings under Section 498-A of IPC are also pending against the husband in the criminal court. The parties arrived at an agreement to settle the matter amicably and filed consent terms on 31.8.2004. One of the consent terms agreed by the parties was that the parties will reside together in the flat at Bussa Apartment, Santacruz and if respondent-wife was required to leave the said flat and stay separately, in that event, the petitioner-husband should pay sum of Rs.8 lakhs before removing the respondent-wife from the house. Both the parties agree to withdraw the respective petitions filed against each other. However, it appears that the parties did not behave as per the consent terms. So the petitioner-husband filed a Petition No.1815 of 2006 for compliance of the consent terms. In the said petition, wife filed the Application No.A-1365 of 2006 and prayed for interim maintenance. The Court while deciding the said application on 14.10.2008 fixed the amount of maintenance of Rs.3000 per month to the wife. Petitioner-husband found that it is not possible for him to deposit the amount of maintenance of Rs.3000, hence withdrew the said petition on 29.8.2009.

4 Respondent-wife thereafter filed Petition No.C-20 of 2010 under Section 18 of the Hindu Adoption & Maintenance Act of 1956. Respondent filed written statement on 25.2.2011. In the said petition, respondent-wife filed an application for striking off the defence for non-compliance of the order of maintenance passed by the Court in the Petition No.A-1365 of 2006. He demanded that respondent should pay the arrears from 14.9.2006 till 29.8.2009 i.e the date of the withdrawal of the petition. The application was contested by filing reply by the petitioner-husband. The learned Judge of the Family Court held that the petitioner-husband has not paid even a single paisa and arrears of maintenance amount is more than Rs.1 lakhs. The Judge held that on failure of the compliance of the order of interim maintenance, his defence is struck off under the provisions of Order-39 Rule-11 read with Section 151 of CPC.

5 Learned Counsel for the petitioner argued that the respondent-wife has not complied with the consent terms and said consent terms are binding on the parties as they have signed and accepted the terms before the Court. She submitted that the petitioner is always ready and willing to perform as per the consent terms. Petitioner-husband is ready to pay Rs.8 lakhs to the respondent in lieu of the said flat and she should vacate the same. It is submitted that the order passed by the Family Court Judge striking off the defence is a wrong order.

6 In reply, learned Counsel for the respondent-wife has submitted that not only the consent terms were flouted by the respondent but the order of the court to pay maintenance of Rs.3000 per month is disobeyed by the husband. He submitted that the order of striking defence can be passed by the Family court under Section 151 of CPC. He relied on judgments of Neeta Shreyas Joshi Vs. Shreyas S.Joshi reported in AIR 1991 Gujrat 251 and also on Vanmala, wife of Moroti Hutkar V/s. Maroti Sambhaji Hatkar, reported in 1999(2) Mh.L.J. 297. He submitted that the court is also empowered