Point of law : Defence can be struck off for non compliance of an order for payment of pendente lite maintenance only as a last resort and if the default is found to be deliberate and wilful

JUDGMENT :

Kauser Edappagath,J.

Whether an application for maintenance pendente lite u/s 24 of the Hindu Marriage Act, 1955 would lie in a proceeding other than under the said Act?

Under what circumstances can the Family Court strike off the defence for non compliance of the order to pay pendente lite maintenance?

These are the questions that arise for consideration in this matrimonial appeal.

2. The husband is the appellant. The wife and minor daughter are the respondents. The respondents filed OP No.304/2012 at the Family Court, Alappuzha (for short 'the court below') claiming return of gold ornaments, patrimony and maintenance. The appellant appeared at the court below and filed objection statement. During the pendency of the original petition, the respondents filed IA No.1119/2012 invoking S.24 of the Hindu Marriage Act,1955 and S.151 of the Code of Civil Procedure,1908 (for short "CPC") claiming pendente lite maintenance from the appellant @ Rs.7,000/-and Rs.8,000/-respectively. The court below allowed the said application and directed the appellant to pay maintenance @ Rs.5,000/-per month to the respondents from the date of the application till the disposal of the OP. Since the appellant failed to comply with the said order, the respondents filed IA No.918/2014 invoking S.151 of CPC to strike off the defence of the appellant. The said application was allowed and the defence of the appellant was struck off. Thereafter, the 1st respondent filed proof affidavit and marked Exts.A1 to A3 documents. Relying on the ex parte evidence given by the respondents, original petition was allowed as per the judgment dated 8th October, 2014. The appellant was directed to return 38½ sovereigns of gold ornaments and a sum of Rs.1,80,000/-. The appellant was also directed to pay maintenance to the respondents @ Rs.5,000/-each per month from 5/3/2012 onwards. The said judgment is under challenge in this appeal.

3. We have heard Sri.S.Sanal Kumar, the learned counsel for the appellant and Sri.K.S.Madhusoodanan, the learned counsel for the respondents.

4. The learned counsel for the appellant submitted that the order for payment of pendente lite maintenance passed by the court below was without jurisdiction and hence, the defence of the appellant ought not to have been struck off. The counsel further submitted that the court below even without giving an opportunity to the appellant to show cause or make the payment, hurriedly disposed of I.A. No. 918/2014. The learned counsel for the respondents supported the impugned judgment

5. Order VI Rule 16 of CPC deals with striking out of pleadings. The power under Order VI Rule 16 is intended to be exercised in three specific circumstances. They are:-

(i) When pleadings are unnecessary, scandalous, frivolous or vexatious; or

(ii) If the pleadings tend to prejudice, embarrass or delay the fair trial of the suit; or

(iii) if it is otherwise an abuse of the process of the court.

Unless any of the circumstances referred above are present, the court cannot strike off the defence under Order VI Rule 16. However, the various High Courts including the Kerala High Court [see Mangalam v. Velayudhan Asari (1992 (2) KLT 553)] has held that the Court has inherent power u/s 151 of CPC to strike off the defence on failure to pay pendente lite maintenance ordered by the Court. The Apex Court recently referring to the judgments of various High Courts on the point upheld the power of the Court to strike off the defence if there was non compliance of the order of payment of interim maintenance. However, it was held that striking off the defence is an order which ought to be passed in the last resort, if the court finds fault to be wilful and contumacious, particularly to a dependent unemployed wife and minor child. It was also observed that contempt proceedings for wilful disobedience may be initiated before the appropriate court. Thus, the inherent power under S.151 of CPC to strike off the defence on failure to pay pendente lite