A.M. Shaffique, J.

1. This original petition is filed challenging the order dated 19/12/2016 in I.A. No. 3799/2016 in O.P. No. 801/2014 by which the Family Court had struck off the defence of the petitioner.

2. The short facts involved in the original petition would disclose that 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 Order 6 of Rule 16 read with Section 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.

3. In the counter affidavit filed as Ext. P4, petitioner contended that the M.C proceedings have been taken under Section 125(3) of the Cr.P.C and if there is non-compliance, the remedy available is to proceed under Section 128. The provision under Order 6 Rule 16 cannot be invoked for the above purpose.

4. The Family Court placing reliance upon the judgment in Mangalam v. Velayudan Achari [1991 KHC 396] held that if there is failure to pay arrears of maintenance, the Court can strike off the defence by invoking its inherent power under Section 151 C.P.C. and accordingly allowed the application stating that the respondent has no locus standi to contest the matter.

5. Learned counsel for the petitioner submits that the Court below committed serious error in striking off the pleadings. Further it is contended that M.C. No. 192/2002 was already disposed of and payments were being made towards maintenance on several occasions. He also produced Ext. P6 series to indicate that certain payments were made. Learned counsel also placed reliance upon a judgment of this Court in Sakeer Hussain T.P. v. Naseera and Others [2016(5) KHC 167 in order to contend that striking off the defence on the basis of arrears of maintenance is outside the jurisdiction of the Family Court. Learned counsel appearing for the respondent, however, supports the view taken by the Family Court. It is contended that the judgment in Mangalam (supra) squarely applies to the fact situation. Non payment of amounts directed to be paid by a competent court amounts to abuse of the process of court, in which event, it is well within the jurisdiction of the Family Court to take a decision to strike off the defence.

6. In order to have a correct understanding of the legal position involved in the matter it is worthwhile to consider the judgment relied upon by either side. In Mangalam (supra), the original petition was filed for divorce under Section 13 of the Hindu Marriage Act alleging cruelty. Pending the original petition, an application was filed for interim maintenance and litigation expenses which was ordered by the Court below. The said order was modified by the High Court in revision. An application was filed alleging that there is deliberate default in payment and there was a balance of Rs. 5,200/-. Prayer was sought for to strike off the defence in regard to the wilful default being committed in payment of the amount ordered by the Family Court. The Court below took the view that there is no provision in striking off the defence under the Hindu Marriage Act and Section 151 of the C.P.C cannot be called in to strike off the defence. The learned Single Judge, however, placing reliance upon the judgments in Parukutty Amma v. Thankamma Amma [1998 (1) KLT 883], Narayana Nadar v. Jayakodi Ammal [1990 (1) D.M.C 596 of the Madras High Court, Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shamala [1990 (II) D.M.C 486] of the Andhra Prad