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2023 Supreme(Online)(KER) 20237
HIGH COURT OF KERALA
ANIL K. NARENDRAN, P. G. Ajithkumar, JJ
JOHNSON ITTY
– Appellant
Versus
SHOBHA JOHNSON – Respondent
OP (FC) 580 2022
C.S.MANILAL S.NIDHEESH, ABRAHAM P.MEACHINKARA, KURIAKOSE MATHEW, MARGARET MAUREEN DROSE, JAYAKRISHNAN P.R.THOMAS GEORGE ALEXANDER K.C.
Striking off a party's pleadings for non-payment of maintenance requires sufficient reasoning and an opportunity for the party to be heard.
Headnote:
Family Law - Marriage Dissolution - Family Courts Act, 1984 - Section 19(1), Article 227 of the Constitution
Fact of the Case:
The appellant-husband sought divorce while the respondent-wife sought return of gold ornaments and money. The Family Court dismissed the divorce petition and struck off pleadings due to non-payment of maintenance by the husband.
Finding of the Court:
The court found that the Family Court had not exercised its power to strike off pleadings with sufficient justification and failed to provide an opportunity for the appellant to be heard.
Issues: Whether the Family Court's decision to strike off pleadings due to non-payment of maintenance was justified and lawful.
Ratio Decidendi: The court ruled that striking off pleadings is an extraordinary measure and must be supported by adequate reasoning and an opportunity for the concerned party to defend.
Final Decision: The orders of the Family Court were set aside, restoring the original petitions for fresh consideration.
JUDGMENT
P.G. Ajithkumar, J.
Mat.Appeal No.813 of 2022 The appellant-husband has filed O.P.No.626 of 2016 before the Family Court, Pathanamthitta seeking a decree of dissolution of his marriage with the respondent, which was solemnized on 25.9.2019. As per the judgment dated 16.07.2022 that O.P. was dismissed. Challenging the said judgment, this appeal has been filed under Section 19 (1) of the Family Courts Act , 1984.
O.P.(FC) No.580 of 2022
2. The respondent-wife filed O.P.No.19 of 2015 before the file of the Family Court, Pathanamthitta, seeking a decree of return of gold ornaments and realisation of money. As per the order in I.A.No.1 of 2022 dated 16.07.2022, the Family Court struck off the pleadings of the petitioner. He challenges the said order in this Original Petition filed under Article 227 of the Constitution of India.
3. On 13.10.2022, when this matter came up for consideration, this Court on finding that a copy of the order dated 16.07.2022 in I.A.No.1 of 2022 was not issued to the petitioner, a report from the Family Court, Pathanamthitta was called for. Report dated 18.10.2022 was submitted by the learned Judge, Family Court, Pathanamthitta.
4. In both the Original Petition and the Mat.Appeal, the respondent appeared pursuant to notice.
5. Heard the learned counsel appearing for the appellant/petitioner-husband and the learned counsel appearing for the the respondent-wife.
6. The respondent filed O.P.No.19 of 2015 seeking a decree of return of gold ornaments and realisation of money. The appellant-petitioner filed a written statement opposing the claim in the original petition. The appellant/petitioner filed O.P.(Divorce) No.626 of 2016 seeking a decree of divorce on the ground of cruelty and desertion. The respondent has filed a written statement opposing the said original petition. The appellant/petitioner filed O.P.(G&W) No.1103 of 2016 seeking custody of the minor children. M.C.No.39 of 2014 was filed by the respondent claiming maintenance for the children. She also filed M.C.No.10 of 2017 claiming maintenance to herself. She also filed MC 140 of 2016 for enhancement of the amount of maintenance ordered in MC No.39 of 2014.
7. The Family Court ordered joint trial of O.P.No.19 of
2015, O.P.(Divorce) No.626 of 2016 ad O.P.(G&W) No.1103 of 2016. Whileso, the respondent filed I.A.No.1 of 2022 in O.P.No.19 of 2015 alleging that the appellant/petitioner did not pay maintenance ordered to be paid to the respondent and for that reason to strike off his pleadings. The appellant petitioner filed I.A.No.2 of 2022 to issue summons to the Bank Manager stating that his examination would prove payment of the entire maintenance amount. A copy of which is Ext.P5. He also filed I.A.No.3 of 2022 seeking extension of time for payment of the amount of arrears. Ext.P6 is a copy of I.A.No.3 of 2022. The respondent opposed Ext.P5 and P6 applications.
8. Ext.P4 is an order of the Family Court dated
21.04.2022 in I.A.No.1 of 2022. As per the said order, the appellant-petitioner was directed to pay the entire amount of arrears to the respondent within a period of two weeks from the date of that order. It was thereafter the Family Court considered Exts.P5 and P6 applications.
9. The learned counsel appearing for the appellant/
petitioner would submit that the Family Court, without passing any formal order, dismissed Exts.P5 and P6 applications and consequently allowed I.A.No.1 of 2022. Resultantly, O.P.No.626 of 2016 was dismissed for default, obviously as a consequence of striking off his pleadings. Similarly, the pleadings of the appellant/petitioner in O.P.No.19 of 2015 were also struck off. Ext.P8 is the copy of the B-Diary proceedings obtained from the e-court site. The learned counsel appearing for the appellant- petitioner would submit that no copy of the order in Exts.P5 and P6 applications and also I.A.No.1 of 2022 could be obtained, and therefore he was constrained to file O.P.(FC) No.580 of 2022 along with Ext.P8.
10. Along with the re
