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2018 Supreme(Ker) 591
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.K. ABDUL REHIM, R. NARAYANA PISHARADI, JJ.
Maximus Fernandez Alias Maxwell Fernandez – Petitioner
Vs.
Olga Fernandez – Respondent
OP (FC).No. 276 of 2018
Decided On : 24-09-2018
For the Petitioner: Sri. R. Mohana Babu Sri. M. Ajith (Karicode)
For the Respondent: Saju J Panicker
Headnote:
The Code of Civil Procedure, 1908- Section 151 ;; The Hindu Marriage Act, 1955, Section 24 -An order of the Family Court, acting as a civil court, granting interim maintenance to the wife is executable in accordance with the procedure prescribed under the Code for execution of decrees-Interim orders are executable under the procedure prescribed under the Code.
Statement of facts:
The petitioner is the husband and the respondent is the wife. The petitioner has challenged Exts.P5, P6 and P8 orders passed by the Family Court, Kollam in O.P.No.651/2011 filed against him by the wife.
Finding of the court:
On failure of the petitioner to deposit the aforesaid amount within the stipulated time, Ext.P5 order shall stand and the Family Court shall proceed with the trial of the case and dispose of it at the earliest without taking into consideration the defence of the petitioner therein. If the amount is deposited, the respondent is at liberty to withdraw the same.
Result: Original Petition is disposed of
R. Narayana Pisharadi, J.
1. The petitioner is the husband and the respondent is the wife. The petitioner has challenged Exts.P5, P6 and P8 orders passed by the Family Court, Kollam in O.P.No.651/2011 filed against him by the wife.
2. O.P.No.651/2011 is filed by the respondent against the petitioner for granting a decree for realisation of an amount of Rs.75,75,000/-from him and also for maintenance @ Rs.25,000/-per month. The respondent filed an application as I.A.No.2202/2011 in that case claiming interim maintenance from the petitioner. As per the order dated 11.01.2012, the Family Court directed the petitioner to pay interim monthly maintenance @ Rs.10,000/-to the respondent. The petitioner challenged the aforesaid order by filing O.P.(FC) No.1316/2012 before this Court. But, as per the judgment dated 11.04.2012, this Court dismissed O.P.(FC) No.1316/2012.
3. Thereafter, the respondent filed three applications as I.A.Nos.2392/2012, 2818/2017 and 2911/2015 in O.P.No.651/2011. The application I.A.No.2392/2012 was filed by her to strike off the defence of the petitioner in O.P.No.651/2011. The application I.A.No.2818/2017 was filed by her for withholding the trial of the case. The application I.A.No.2911/2015 was filed by her for directing the tenants of the buildings owned by the petitioner to deposit in the court the arrears of rent payable by them to the petitioner.
4. As per Ext.P5 order passed in I.A.No.2392/2012, the Family Court found that the petitioner had deliberately disobeyed the order passed by the court for payment of interim maintenance to the respondent and therefore, ordered that the defence of the petitioner in O.P.No.651/2011 shall be struck off. As per Ext.P6 order passed in I.A.No.2818/2017, the Family Court directed that the trial of the case O.P.No.651/2011 shall be withheld till the petitioner pays the arrears of maintenance to the respondent. As per Ext.P8 order passed in I.A.No.2911/2015, the Family Court directed the tenants of the buildings owned by the petitioner to deposit in the court the arrears of rent payable by them to the petitioner from the month of January, 2016 onwards.
5. We have heard learned counsel for the petitioner as well as the respondent.
6. We find no illegality or impropriety or perversity in Ext.P5 order passed by the Family Court, striking off the defence of the petitioner in the case O.P.No.651/2011. The judgment of this Court in O.P.(FC) No.1316/2012 would show that the petitioner was working as an Engineer in Kuwait. Of course, the petitioner has got a plea that he retired from his job in December, 2014. The judgment in O.P.(FC) No.1316/2012 was passed by this Court on 11.04.2012. The petitioner has not offered any excuse for non-payment of the interim monthly maintenance ordered to be paid by him to the respondent at least for the period till he retired from his job. Contumacious conduct on his part is evident. It is well settled by a catena of decisions of this Court that the court can exercise the power under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to strike off the defence of a party who wilfully makes default in payment of interim maintenance to the spouse (See Mangalam v. Velayudhan : 1992(2) KLT 553, Jayasree v. Vivekanandan : 2012(2) KLT 249, Mahesh v. Roopa : 2017(3) KLT 226 and Shafi v. Raihanath : 2018(3) KHC 851).
7. Now we shall consider the legality of Ext.P6 order passed by the lower court. As per Ext.P6 order, the Family Court has directed that the trial of the case O.P.No.651/2011 shall be withheld till payment of the arrears of maintenance by the petitioner to the respondent. As per Ext.P6 order, the lower court has really stayed or kept in abeyance the trial of the aforesaid case.
8. In Anita Karmokar v. Birendra Chandra Karmokar: AIR 1962 Cal 88, the Calcutta High Court has held that an order for payment of interim maintenance passed by the court under Section 24 of the Hindu Marriage Act, 1955 can be
