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HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
ANITTA ASHOK – Appellant
Versus
RATHEESH M.A. – Respondent
OP (FC) 266 2023
Divorce - Family Law - Maintenance - Sections 125, 126 of CrPC - Court emphasized the need for Family Court to dispose of pending applications related to maintenance before allowing further proceedings.
Fact of the Case:
The husband filed for divorce but failed to pay ordered interim maintenance. The wife petitioned to strike off his pleadings due to this default. The Family Court allowed the husband to adduce evidence without addressing the wife's petition first.
Finding of the Court:
The court found that the Family Court acted in violation of established legal principles by not addressing the wife's petition before permitting the husband to present evidence, emphasizing the importance of compliance with maintenance orders.
Issues: Whether the Family Court erred by allowing the husband to adduce evidence without first disposing of the wife's application to strike off his pleadings due to his default in maintenance payments.
Ratio Decidendi: The court held that if a party deliberately fails to comply with maintenance orders, the Family Court is justified in striking off the party's defense, stressing the necessity of addressing maintenance issues promptly.
Final Decision: The original petition is disposed of, directing the Family Court to address the pending maintenance application before allowing further proceedings.
J U D G M E N T
Sophy Thomas, J.
The respondent in OP No.152 of 2020 on the file of Family Court, Pala, filed the above original petition, aggrieved by the action of the Family Court in proceeding with the evidence of the petitioner/husband, before disposing Ext.P5 petition filed by her for striking out his pleadings, as he failed to pay the interim maintenance ordered by the court.
2. OP No.152 of 2020 was filed by the husband for divorce. He defaulted payment of maintenance as ordered by the court @ Rs.15,000/- per month. So, she filed Ext.P5 petition to strike off his pleadings. Without considering or disposing that application, the Family court granted opportunity to him for adducing evidence, in gross violation of the dictum laid down by the Apex Court inRajnesh vs.Neha and another ( 2020 (6) KHC 1 .
3. Considering the nature of relief prayed, notice to the respondent is dispensed with.
4. If failure to pay maintenance is deliberate and willful, and if the husband violates the order of the court to pay the maintenance without any impunity, the Family Court will be justified in striking off his defence/pleadings even in a proceedings instituted by the wife in which she has not claimed any maintenance. For the purpose of doing justice, courts will have to adopt such methods, if the failure to honour the orders of the court is deliberate and willful. So, the Family Court, Pala, before permitting the respondent/husband to adduce evidence, has to dispose of Ext.P5 (I.A No.6 of 2023), on its merits.
With that direction, this OP(FC) is disposed of.
Learned counsel for the petitioner is directed to serve a copy of this judgment to the learned counsel appearing for the respondent before the Family Court.
Registry of this Court is directed to communicate this judgment to the Family Court, Pala forthwith.
Sd/-
A.MUHAMED MUSTAQUE JUDGE
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