DV Act | Court Can Strike Off Defence For Willful Non-Compliance With Order For Interim Maintenance: Kerala High Court

The Kerala High Court has ruled that a Court can strike off the defence of the defaulter if they deliberately or willfully refuse to comply with its order directing payment of interim maintenance under the Protection of Women from Domestic Violence Act (DV Act). 

Justice Kauser Edappagath held so after observing that in Rajnesh v. Neha & Anr, the Supreme Court had upheld the power of the court to strike off the defence if there was willful and contumacious non-compliance with the order of payment of maintenance.

"In a proceeding under the DV Act, the defence can be struck off for non-compliance with an order of payment of pendente lite maintenance if the default is found to be deliberate and wilful. However, such an order ought to be passed only as a last resort as held in Rajnesh (supra)".

The Court also laid down that under Section 28, the court can lay down its own procedure while dealing with the applications under Section 12(1) or considering the grant of interim relief orders.

"It cannot be said that Court is bound to strictly abide by the provisions of CrPC in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C."

The petitioner-wife had approached the Magistrate under 12 of the Act seeking various reliefs including interim maintenance. An interim maintenance of Rs. 15,000 was awarded to the petitioner. This was challenged by the respondent-husband before several fora, and finally, the High Court directed the husband to pay Rs. 2 lakhs towards arrears of maintenance within one month. 

Since the husband failed to comply with this, the wife moved the Magistrate to strike off his defence in the case. But this was dismissed on the ground that as per S.28(1) of the Act, all proceedings under Section 12 shall be governed by the provisions of the CrPC but there was no provision in the Code to strike off the defence. Aggrieved by this, she moved the High Court. 

Advocates Dhanya P. Ashokan and Subal J. Paul appeared for the wife and Advocate D. Leema Rosy appeared for the husband in the matter. 

The Court noted that the purpose of enacting the law was to provide civil remedies to a woman who is subjected to domestic violence. Although various kinds of reliefs which can be obtained by the aggrieved person are of civil nature, when there is a breach of such orders passed by the Magistrate, Section 31 considers such a breach to be a punishable offence.

The Judge held that the DV Act in general, is of a civil kind and the reliefs available thereunder are of civil nature, but the forum prescribed to secure the reliefs is a criminal court.

"Merely because the jurisdiction is exercised by the criminal court/Magistrate and the provisions of the Code of Criminal Procedure are followed, it does not change the character of the proceedings as criminal proceedings. The character of the proceedings depends not upon the nature of the forum which is invested with authority to grant relief, but upon the nature of the relief sought to be enforced. A proceeding that deals with the right of civil nature does not cease to be so just because the forum for its enforcement prescribed by the statute is the criminal court."

Further, it was laid down that under Section 28, the court can lay down its own procedure while dealing with the applications under Section 12(1) or considering the grant of interim relief orders. 

"It cannot be said that Court is bound to strictly abide by the provisions of Cr.P.C in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C."

Thus, it was held that the Magistrate went wrong in holding that it has no power to strike off the defence citing that the procedure to be followed in the proceedings was that provided under CrPC.

Moreover, in this case, the Court noted that the husband's default was willful and contumacious, particularly to his dependent unemployed wife as held in Rajnesh (supra). Therefore, the Magistrate was directed to give him a last opportunity before allowing the prayer to strike off his defence. 

Case Title: Neethu v. Trijo Joseph 

Citation: 2022 LiveLaw (Ker) 288

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