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2024 Supreme(Online)(KER) 24710
HIGH COURT OF KERALA
SANU KABEER – Appellant
Versus
THASNI SALAM – Respondent
RPFC 257/2023
The court established that procedural fairness is crucial in maintenance proceedings, necessitating the right to defend.
Headnote:
Maintenance - Family Court - Section 125 Cr.P.C. - Court emphasized the necessity of providing an opportunity to defend in maintenance cases, underlining procedural fairness.
Fact of the Case:
The petitioner, husband, challenged a Family Court order directing him to pay interim maintenance of Rs.4,000/- after he failed to comply, leading to his defense being struck off.
Finding of the Court:
The court found that the petitioner was denied an opportunity to present evidence, thus setting aside the order and allowing time for payment of Rs.1,00,000/- towards maintenance.
Issues: Whether the petitioner was denied the right to defend adequately in the maintenance proceedings and if the prior order directing maintenance should be set aside.
Ratio Decidendi: The court held that striking off the defense without giving the petitioner an opportunity to present his case violated principles of natural justice.
Final Decision: The impugned order was set aside, and the petitioner must pay Rs.1,00,000/- towards maintenance within 45 days.
O R D E R
The challenge in this revision is to the order dated 29.10.2022 in M.C.No.125 of 2019 passed by the Family Court, Mavelikkara.
2. The petitioner is the respondent/husband in M.C.No.125 of 2019. The respondent is the petitioner therein. The respondent filed the Maintenance Case under Section 125 Cr.P.C. before the Family Court. The Court issued notice to the petitioner husband.
3. After hearing both sides, the Family Court passed an interim order directing the petitioner/husband to pay Rs.4,000/- per month. He did not pay the interim maintenance awarded. When he failed to make the payment, the Family court struck off his defence and passed the impugned order.
4. I have heard the learned counsel for the petitioner/husband and the learned counsel for the respondent/wife.
5. The learned counsel for the petitioner submitted that the respondent/wife is employed in a private firm and that, she has sufficient means to maintain herself. It is further submitted that the petitioner has no capacity to pay the maintenance awarded. The learned counsel further submitted that the petitioner was not given an opportunity to lead evidence as the Family Court struck off his defence.
6. The learned counsel for the respondent submits that the respondent is not employed and she has no means to survive.
7. When the matter was considered earlier, this Court directed the petitioner to pay Rs.1,00,000/- to the respondent within one month. It is submitted that the petitioner paid the amount as directed by this Court. The petitioner is now prepared to pay Rs.1,00,000/- within 45 days from this date, provided he is given an opportunity to file counter and lead evidence in the maintenance case.
8. Having regard to the fact that the impugned order has been passed without giving an opportunity to the petitioner to resist the pleadings of the respondent, I feel that the order impugned can be set aside on condition that the petitioner pays Rs.1,00,000/- within 45 days from this date.
9. Accordingly, the R.P.(F.C) is disposed of with the following directions:-
(1) The order impugned stands set aside.
(2) M.C.No.125 of 2019 on the file of the Family Court, Mavelikkara is restored to file.
(3) The petitioner shall pay Rs.1,00,000/- towards arrears of maintenance to the respondent within 45 days from this date. If the petitioner fails to make payment as directed, the Family Court shall strike off his defence and proceed to consider the maintenance case in accordance with law.
It is also made clear that this Court has not made any observations on the merit of the contentions raised. The Family Court shall dispose of the matter, in accordance with law, untrammeled by any of the observations made by this Court.
