Back
HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
ANITTA ASHOK – Appellant
Versus
RATHEESH M.A – Respondent
OP (FC) 275 2023
Maintenance - Family Law - Family Courts Act Section 125 - The court emphasized that willful failure to pay maintenance can lead to striking off the defense of a husband in divorce proceedings, stressing the necessity of adhering to court orders.
Fact of the Case:
The petitioner filed for divorce and sought to strike off the husband's defense due to his failure to pay court-ordered maintenance. The Family Court proceeded with the husband's evidence without addressing the motion to strike.
Finding of the Court:
The court found that the Family Court erred in allowing the husband to adduce evidence before resolving the wife's application to strike off his defense due to non-payment of maintenance.
Issues: Whether the Family Court can proceed with evidence from the husband despite a pending application to strike off his defense for failure to pay maintenance.
Ratio Decidendi: The court ruled that a unilateral failure to pay maintenance, especially if willful, justifies striking off the defense in a divorce proceeding.
Final Decision: The original petition is disposed of with direction to the Family Court to decide on the application to strike off the husband's defense.
J U D G M E N T
Sophy Thomas, J.
The petitioner in OP No.527 of 2018 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 respondent/husband, before disposing Ext.P4 petition filed by her for striking out his pleadings, as he failed to pay the interim maintenance ordered by the court.
2. OP No.527 of 2018 was filed by the original petitioner for divorce. The respondent/husband defaulted payment of maintenance ordered by the Family Court @ Rs.15,000/- per month. So, the petitioner/wife filed Ext.P4 application to strike off his defence. Without considering or disposing that application, the Family court granted opportunity to the respondent for adducing evidence, in gross violation of the dictum laid down by the Apex Court in Rajnesh 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 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.P4 (I.A No.2 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
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
