The court established that noncompliance with maintenance orders justifies striking off a defense in relevant cases.

JUDGMENT

Devan Ramachandran , J.

The petitioner challenges Ext.P7 order of the learned Family Court, Thrissur, whereby, her request to strike off the defence of the respondent herein in OP No.1495/2019, filed by her seeking recovery of ornaments, has been rejected. 2. Sri.Anand Kalyanakrishnan – learned counsel for the petitioner, vehemently argued that the respondent is deliberately and willfully violating maintenance orders issued by the learned Family Court in MC No.536/2019; and therefore, that his client had no other option but to move IA No.1/2024, which has now been, however, dismissed. He argued that when the respondent has obdurately violated orders and is even facing distress warrant, the learned Family Court ought not to have allowed him any opportunity of being able to defend his case; and that this is a fit case where his pleadings ought to have been struck off, invoking the provisions of Section 151 of Code of Civil Procedure (CPC), as declared by this Court in Maximus Fernandez alias Maxwell Fernandez v. Olga Fernandez [ 2018 (4) KLT 709 ].

3. Before we move forward, we must record that the summons issued to the respondent from this Court has been validly served; but he has chosen not to be present in person or to be represented through counsel. We are, therefore, constrained to dispose of this matter in his absence.

4. We have examined Ext.P7 order and notice that the sole reason why the learned Family Court has refused to allow the plea of the petitioner to strike off the defence of the respondent is because the evidence of PW1 in OP No.1129/2019 - which had been ordered to be jointly tried with the case in hand - has been completed.

5. Sri.Anand Kalyanakrishnan – learned counsel for the petitioner, vehemently argues that the position is still the same and that only the evidence of PW1, namely that of his client, is complete; and hence that the learned Family Court could not have refused to strike off the defence of the respondent in such circumstances.

6. There is some force in the afore submissions of Sri.Anand Kalyanakrishnan because, if the respondent is refusing deliberately to comply with the orders of maintenance in M.C.No.536/2019, then the declarations of law as made by this Court in Maximus Fernandez (supra), as also in Mahesh v. Roopa [ 2017 (3) KLT 226 ], would come to play. In fact, this Bench has approved Maximus Fernandez (supra) through a subsequent judgment in Prazeel A.Faisal v. Asmi M. [OP(FC)

Nos.451/2024 & 453/2024].

7. We are, therefore, of the firm view that the learned Family Court could not have refused to order IA No.1/2024 merely because the evidence of the petitioner in OP No.1129/2019 has been completed.

8. In the afore circumstances, we allow this Original Petition and set aside Ext.P7; with a consequential direction to the learned Family Court to reconsider IA No.1/2024 in OP No.1495/2019, after affording necessary opportunities to both sides, thus culminating in an appropriate order thereon.

Needless to say, until such time as the afore is done and the resultant order issued, all further proceedings in OP No.1495/2019 before the learned Family Court, Thrissur, will stand deferred.