Striking Off Opposite Party's Defence For Failure To Pay Interim Maintenance An Extreme Step, To Be Availed As Last Resort: Kerala High Court

In terms of the proviso to Section 125 CrPC, the Court can issue an order for payment of interim maintenance during the pendency of maintenance proceedings and such orders shall be disposed of within sixty days from the date of service of notice on the opposite side. Section 128 CrPC pertains to the procedure for enforcement of maintenance orders including orders for interim maintenance.

In allowing the plea, by granting the husband a last opportunity to pay maintenance, Justice C.S. Dias relied upon the Apex Court decisions in Kaushalya v. Mukesh Jain (2020), Rajnesh v. Neha (2020) and held thus:

“Perhaps, it is keeping in mind the bottlenecks in the procedure and to uphold the majesty of the Court, the Honourable Supreme Court in the afore-cited precedents has held the defence of the erring husband/father/son can be struck off in a proceeding under Section 125, as a last resort, on his failure to pay interim maintenance.”

The Court observed that the legislature intended to dispose of interim applications for maintenance within sixty days as per Section 125 to provide relief to the dependent wife and children without causing delay. The Court lamented that the existing reality was that enforcement of the interim maintenance order as per Section 128 CrPC takes months and years, defeating the purpose of the legislation.

Background Facts

The respondent-wife and child of the petitioner-husband had approached the Family Court for interim maintenance under Section 125 CrPC. Family Court allowed it and the husband was directed to pay rupees ten thousand per month as interim maintenance during the pendency of maintenance proceedings.

Since the husband failed to pay interim maintenance, the Family Court struck off his defence in the proceedings and a maintenance application was allowed. Aggrieved by this, the husband preferred a revision petition before the High Court.

The Counsel for the petitioner-husband, Advocates S Shanavas Khan, S Indu, Kala G Nambiar relied upon the decisions in Sakeer Hussain T.P. v. Naseera and Ors. (2016) and Hari B. v. Harsha S. & Anr. (2021) argue that defence cannot be struck off on failure to pay interim maintenance.

It was also argued that Chapter IX, Section 125-128 CrPC which contemplates Order for Maintenance of Wives, Children and Parents has no enabling provision that permits the Family Court to strike off defence on failure to pay interim maintenance.

It was contended that the remedy was to approach the Court under Section 128 CrPC for enforcement of the order for maintenance and not to strike off defence.

Advocates Visal Ajayan, A Sreepriya, counsel for the respondent-wife and child, relied upon the Apex Court decision in Kaushalya (supra), Division Bench decision in Mahesh v Roopa (2017) and Muraleedharan v. Jincy (2018) to contend that the Family Court was justified in striking off the defence of the husband on his wilful failure to pay the interim maintenance.

Court Observations

On analysing various judgments of the Court, Justice Dias held that the Court can strike off the defence on failure to pay interim maintenance as a last resort and not as a first resort as it was a drastic measure. It noted that an opportunity for a hearing has to be provided to the husband before striking off the defence.

Relying upon the Apex Court decisions in Kaushalya (supra), and Rajnesh (supra), the Court held that the law has been crystallized that defence can be struck off as a last resort on wilful and contumacious failure of the opposite party to pay interim maintenance to the dependents as per the order of the Court. It thus held that the decision in Sakeer Hussain T.P. (supra) was bad in law and Hari B (supra) was per incuriam.

“With the pronouncement of Kaushalya and Rajnes, the law has crystallised that the defence of the respondent can be struck off in a proceeding under Section 125 as the last resort if he willfully and contumaciously fails to pay interim maintenance to his dependent wife and minor child. Thus, the decision in Sakeer Hussain T.P. is no longer good law………..The judgment in Hari.B was pronounced by this Court on 20.1.2021, and the judgments in Kaushalya and Rajnesh were pronounced on 24.07.2019 and 04.11.2020, respectively. The later decision was rendered without adverting to Kaushalya and Rajnesh. Therefore, the judgment in Hari. B is per incuriam.”, the Court observed.

In the facts of the case, the Court held that the Family Court had not provided an opportunity to pay arrears of maintenance to the husband before taking the last resort of striking off his defence as the extreme step.

Accordingly, the Court held that one last opportunity could be given to the husband and set aside the order of the Family Court on the condition that he would pay the arrears of maintenance within sixty days. It held that on such payment of interim maintenance, the respondent-husband can be permitted to contest the application on merits for doing complete justice.

Citation: 2023 LiveLaw (Ker) 710

Case title: Pinchu Chandran v Arya J

Case number: RPFC NO. 443 OF 2023

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