IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 16^TH DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 OP(CRL.) NO. 315 OF 2022 AGAINST THE ORDER IN CMP 305/2022 OF JMFC - VIII, ERNAKULAM (TEMPORARY)

PETITIONER/PETITIONE R SRUTHILAYA, AGED 33 YEARS, D/O K. SURENDRAN, RESIDING AT KALARICKAL HOUSE, KADAVANTHRA, ERNAKULAM, KOCHI, PIN - 682020 BY ADV SMT.D.LEEMA ROSY RESPONDENTS/RESPONDENTS:

1 SHAHEER U.S., AGED 34 YEARS, S/O SUBAIDA P.M., RESIDING AT A-1058 (R.S.PILLAI), 7 TH AVENUE, STATELINE TOWNSHIP POST OFFICE, PADAMUGAL, KAKKANAD, KOCHI, , PIN - 682037

2 SARJU, AGED 36 YEARS, S/O SUBAIDA P.M., RESIDING AT A-1058 (R.S.PILLAI), 7 TH AVENUE, STATELINE TOWNSHIP POST OFFICE, PADAMUGAL, KAKKANAD, KOCHI, PIN – 682037.

THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON

16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

Ext.P-8 order passed by the Judicial First Class Magistrate-VIII, Ernakulam (“The Court below” for short) is under challenge in this Original Petition.

2. The petitioner herein is the wife of the

1^st respondent. The 2^nd respondent is the brother of the 1^st respondent. The petitioner filed M.C. No. 8/2019 against the respondents under Sec.12 of the Protection of Women From Domestic Violence Act (“The DV Act” for short) claiming various reliefs under Secs. 18, 19, 20 & 22 of the DV Act.

3. The petitioner has projected a case, that an autorickshaw was purchased in her name availing loan from the bank for the use of the 2^nd respondent as directed by the 1^st respondent. It is alleged that eventhough the respondents agreed to pay the loan instalment, they failed to pay the same. Hence, the petitioner filed Crl. M. P. No. 1166/2020 at the Court below, invoking Sec.23 of the DV Act, to give direction to the respondents to pay the entire arrears of loan availed for the purchase of autorickshaw, and also to pay the future monthly instalments. The said petition was allowed by the Court below as early as on 5.5.2021 as per Ext.P-9 order. A direction was given to the respondents to pay the arrears of loan as well as to pay the future monthly instalments. Since, the respondents failed to comply with the said order, the petitioner filed Ext.P-6 petition to strike off the defence of the respondents. The 1^st respondent filed objection statement for himself and on behalf of the 2^nd respondent. Ext.P-7 is the said objection. After hearing both sides, the Court below dismissed Ext.P-6 petition as per Ext.P-8 order. The said order is under challenge in this Original Petition.

4. I have heard Smt. D. Leema Rosy, the learned counsel appearing for the petitioner. Even though notice has been served to the respondents, there is no appearance.

5. As per Ext.P-9 order, there was a specific direction to the respondents to discharge the entire loan amount due and to pay the future loan instalments. However, admittedly, the respondents did not comply with the said order. The learned counsel for the petitioner submitted that as of today, a total sum of Rs.3,39,978/- is due towards the loan. In Ext.P-7 objection statement, absolutely no reason has been stated by the respondents for not complying with Ext.P-9 order.

6. This Court in Neethu v. Trijo Joseph [2022 (4) KLT 207] has held that, eventhough Sec.28(1) of the DV Act provides that all the proceedings under Sections 12 and 18 to 23 and for the offence under Sec.31 shall be governed by the provisions of Cr.P.C, the Court can still lay down its own procedure while dealing with application under Sub-section 1 of Sec.12 or while considering the grant of interim/exparte/ad-interim relief order under Sub-section 2 of Sec.23. Finding so, it was held that in the proceedings under the DV Act, the defence can be struck off for non compliance with an order of payment of pendente lite maintenance if default is found to be deliberate and wilful.

7. The dictum in the above decision can be applied for non compliance of Ext.P-9 order by the responden