Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Ker) 355

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Kauser Edappagath, J.
Neethu – Petitioner
Versus
Trijo Joseph – Respondent
OP(CRL.) NO. 226 OF 2022
Decided On : 16-06-2022

Advocates:
Advocate Appeared:
For the Petitioner: Dhanya P.Ashokan, Subal J.Paul
For the Respondent: D.Leema Rosy

Point of Law: In a proceeding under DV Act, 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.

Headnote:
Protection of Women from Domestic Violence Act, 2005 - Sections 12, 20, 23(2) and 28(2) and 18 to 23 - Domestic violence- Power to strike off defence - Pendente lite maintenance/ Interim maintenance - What is nature of proceedings under Act, 2005- civil or criminal - Does Court/Magistrate dealing with complaint filed under provisions of the Protection of Women from Domestic Violence Act, 2005 have power to strike off defence for non-compliance with order to pay pendente lite maintenance - The wife is entitled to withdraw same. If deposit is made as above, trial court shall dispose of MC itself within a period of two months. If amounts as mentioned above are not paid, the defence of the respondent shall stand struck off and the trial court shall proceed with matter in accordance with law. (Para 13)
Finding of the court :
In appropriate cases, it would be open to court to formulate its own procedure as may be found necessary in interest of justice, in which event, court may not have to rely upon Cr.P.C. Thus, court below went wrong in holding that it has no power to strike off defence for reason that the procedure to be followed in proceedings under Sections 12 and 18 to 23 is that provided under Cr.P.C. - It has come out in evidence that petitioner is a dependent unemployed wife. It has also come out in evidence that respondent has ability to maintain petitioner. Even though interim maintenance was awarded by trial court as early as in 2018, not a single month’s maintenance is paid so far. A specific direction of this court to deposit Rs.2,00,000/- towards arrears of maintenance has been flouted without assigning any valid reason. Court have no hesitation to hold that failure on part of husband to pay interim maintenance ordered by learned Magistrate as well as this court is wilful and contumacious. Thus, court below ought to have allowed prayer for striking off defence. However, considering entire facts and circumstances of case, before striking off the defence, court view that a last opportunity can be given to respondent to comply with order of this court.
Result : OP(Crl) as well as Crl.M.A. in OP(Crl) disposed of

Judgement Key Points

Certainly. Here are the key legal points derived from the provided document:

Proceedings under the Protection of Women from Domestic Violence Act, 2005, are primarily of civil nature, although they are conducted within a framework that involves criminal procedure. The reliefs sought are civil in character

JUDGMENT :

What is the nature of proceedings under the Protection of Women from Domestic Violence Act, 2005 – civil or criminal?

Does the Court/Magistrate dealing with the complaint filed under the provisions of the Protection of Women from Domestic Violence Act, 2005 have the power to strike off the defence for non-compliance with the order to pay pendente lite maintenance?

These are the important questions that arise for consideration in the above original petition.

2. The petitioner in OP (Crl) No. 226/2022 is the wife of the respondent therein. She filed MC No.34/2018 at the Judicial First-Class Magistrate Court, Njarakkal (for short ‘trial court’) u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, the DV Act) seeking various reliefs including maintenance. She has also moved an application for interim maintenance u/s 23(2) as CMP No.1087/2018. It was allowed ex parte and interim maintenance of Rs.15,000/-was awarded to the petitioner. The said order was challenged by the respondent at the Sessions Court-II, North Paravur (for short ‘appellate court’) in Crl.Appeal No.97/2019. The respondent sought a stay of the interim order passed by the trial court. The appellate court dismissed the stay petition as per Ext.P1 order with an observation that the Magistrate shall consider the contentions of the respondent and pass final order in the application for interim maintenance. Thereafter, the respondent was given an opportunity to file an objection to CMP No.1087/2018. After considering the objection, the trial court confirmed the ad interim order and directed the respondent to pay all the arrears of maintenance within two weeks as per Ext.P3 order. The said order was challenged by the respondent before this Court in OP (Crl) No.286/2019. This court after hearing both sides disposed of the original petition setting aside Ext.P3 order passed by the trial court and directing the respondent to pay Rs.2,00,000/-towards arrears of maintenance within a period of one month. The trial court was directed to dispose of MC No.34/2018 itself within a period of three months. Ext.P4 is the said order. Since the respondent failed to comply with the direction in Ext.P4 that he shall pay Rs.2,00,000/-within a period of one month, the petitioner filed an application at the trial Court to strike off the defence of the respondent in MC No.34/2018. Ext.P5 is the said application. After hearing both sides, the trial court dismissed the application as per Ext.P6 order. Aggrieved by Ext.P6 order, the petitioner preferred OP (Crl) No. 226/2022.

3. The respondent in OP(Crl) No.226/2022 has filed Crl.M.A.No.1/2022 in OP(Crl) No.286/2019 seeking 6 months’ time to comply with the direction in Ext.P4 judgment to deposit Rs.2,00,000/-.

4. I have heard Smt. Dhanya P.Ashokan, the learned counsel appearing for the petitioner/wife and Smt. D.Leema Rosy, the learned counsel appearing for the respondent/husband.

5. The marital status of the parties is not in dispute. The ex parte interim order of maintenance was confirmed as per Ext.P3 order after hearing both sides. However, this court set aside Ext.P3 order with a specific direction to the respondent to pay Rs.2,00,000/-within a period of one month towards arrears of maintenance due. The said order was passed on 3/2/2022. Admittedly, the direction in the said order has not been complied with so far. MC is of the year 2018. The trial court passed the interim order directing the respondent to pay maintenance at the rate of Rs.15,000/-per month, as early as on 1/12/2018. Even today, admittedly, the respondent has not paid a single pie towards maintenance. It is in these circumstances, that the petitioner/wife filed Ext. P5 application at the trial court to strike off the defence.

6. Ext.P5 application was dismissed by the trial court vide Ext.P6 order mainly holding that as per S.28(1) of the DV Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and the offence u/s 31 shall be govern

Click Here to Read the rest of this document