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HIGH COURT OF KERALA
C.S. DIAS, J
JIJO MATHEW ALEX – Appellant
Versus
ANU T CHERIAN – Respondent
RPFC 524/2023
Maintenance - Family Law - Code of Criminal Procedure - Sec. 125(1) - The court examined the provisions of Sec. 125(1) in determining maintenance obligations, clarifying the procedure for interim maintenance, and addressing the implications of not fulfilling these duties on the right to defend.
Fact of the Case:
The respondents filed for maintenance under Sec. 125(1), claiming the revision petitioner neglected his family. The Family Court ordered interim maintenance, which the revision petitioner failed to pay, leading to the striking off of his defense.
Finding of the Court:
The court found that the Family Court improperly struck off the revision petitioner's defense without allowing an opportunity to remedy the failure to pay maintenance, contrary to legal standards set in precedent cases.
Issues: Whether the Family Court acted within its powers by striking off the defense of the revision petitioner for failing to pay interim maintenance under Sec. 125(1).
Ratio Decidendi: The court emphasized that striking off a defense is a last resort and requires careful consideration of whether the failure to pay maintenance is willful and contumacious, as per previous Supreme Court and High Court rulings.
Final Decision: The order striking off the defense was set aside, allowing the revision petitioner to pay the arrears in installments and contest the application.
Certainly. Here are the key points derived from the legal document:
The court clarified that striking off a defendant’s defense in maintenance proceedings should be a last resort, only to be used when there is willful failure to pay maintenance, and only after providing the defendant an opportunity to remedy the default (!) .
The order to strike off the defense without allowing the defendant to pay the arrears or contest the case was found to be improper and contrary to legal standards (!) (!) .
The court emphasized that the procedure for enforcement of maintenance orders includes effective remedies such as executing the order like a civil decree, and that the drastic step of striking off a defense should be a last resort, exercised with caution and only when default is willful and contumacious (!) (!) .
The judgment highlighted that the law supports providing the defendant an opportunity to pay arrears before any drastic action, such as striking off the defense, is taken (!) .
The court set aside the order striking off the defense, conditioned on the defendant paying the arrears of interim maintenance in installments. Upon compliance, the defendant would be permitted to contest the case on its merits (!) (!) .
The court directed the parties to file affidavits of disclosure of assets and liabilities and emphasized the importance of expeditious disposal of the case, considering the delay involved (!) (!) .
If the defendant fails to comply with the payment of arrears as ordered, the original order striking off the defense will stand confirmed, and the case will proceed accordingly (!) .
Overall, the decision underscores that the enforcement of maintenance orders must be balanced with the right to a fair hearing, and drastic measures like striking off defenses are only justified under specific, serious circumstances.
ORDER
The revision petition is filed assailing the order dated 17.10.2023 in M.C No.27/2021 of the Family Court, Mavelikkara, striking off the defence of the revision petitioner and posting the application for evidence. The revision petitioner is the respondent and the respondents 1 to 3 are the petitioners before the Family Court. The fourth respondent/State is a formal party.
Brief facts
2. The respondents 1 to 3 have filed the application, under Sec.125 (1) of the Code of Criminal Procedure (in short, “Code”), seeking monthly maintenance allowance @ Rs.10,000/- each from the revision petitioner. It is their case that the revision petitioner is the husband of the first respondent and father of respondents 2 and 3. The revision petitioner has wilfully neglected to maintain them. Therefore, they are entitled to maintenance.
3. The revision petitioner had filed a written objection denying the allegations in the application. 4. The parties also filed their affidavits of disclosure of assets and liabilities as laid down in the decision of the Hon’ble Supreme Court inRajnesh v. Neha and Anr [ 2020 (6) KHC 1 ] .
5. The respondents 1 to 3 had also filed CMP No.37/2021 for an order of interim maintenance allowance. The application was allowed on 20.1.2023, by a non-speaking order, directing the revision petitioner to pay monthly maintenance allowance to the first respondent @ Rs.7,500/- and the respondents 2 and 3 @ Rs.5,000/- each from 29.1.2021.
6. Subsequently, the Family Court, by the impugned non-speaking order, struck off the defence of the revision petitioner on the ground that he has failed to pay interim maintenance allowance to the respondents 1 to 3. The impugned order has caused severe prejudice to the revision petitioner, who has been denied his valuable right to contest the proceedings. Hence, the revision petition.
7. Heard; Sri.T.Madhu, the learned counsel appearing for the revision petitioner, Sri.Aibel Mathew, the learned counsel appearing for the respondents 1 to 3 and the learned Public Prosecutor appearing for the fourth respondent/State.
8. The learned counsel appearing for the revision petitioner reiterated the contentions in the memorandum. He argued that Chapter IX of the Code is a self-contained Code. The remedy of the respondents was to file an application under Section 128 to execute the order and not a petition to strike off the defence. The Family Court ought not to have hastily struck off the valuable defence of the revision petitioner. The order is perverse and is liable to be set aside.
9. The learned counsel for the respondents defended the impugned order and submitted that the Family Court was justified in striking off the defence of the revision petitioner on his willful failure to pay the interim maintenance allowance to the respondents. He relied on the judgments of the Hon'ble Supreme Court inKaushalya v. Mukesh Jain [2020 KHC 6766] and the Division Benches of this Court inMahesh v. Roopa [2017 KHC 598] and Muraleedharan v. Jincy [ 2018(4) KHC 639 ] . He urged that the revision petition be dismissed.
10. The materials on record reveal that the respondents’ application for interim maintenance was allowed, and the revision petitioner has failed to pay the ordered amount. Consequentially, the Family Court has struck off the defence of the revision petitioner in the proceeding and is proceeding with the trial.
11. Section 125 (1) of the Code reads as follows:
“ Section 125 – Order for maintenance of wives, children and parents.- (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself o
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