Defence Can Be Struck Off For Non-Payment Of Pendente Lite Maintenance Only As Last Resort & If Default Is Deliberate: Kerala High Court

The Kerala High Court recently while allowing an appeal ruled that a party's defence can be struck off for non-compliance of an order for payment of pendente lite maintenance only as a last resort and if it is found that the default is deliberate and willful.

A Division Bench of Justice A. Mohamed Mustaque and Justice Kauser Edappagath remarked so while adjudicating upon an appeal filed by a man against the Family Court's order striking off his defence for failing to pay maintenance pendente lite.

"...defence can be struck off for non-compliance of an order for payment of pendente lite maintenance only as a last resort and if the default is found to be deliberate and wilful. Needless to say, to arrive at such a conclusion, sufficient opportunity has to be given to the person against whom the order for payment of maintenance has been passed."

It was also clarified that before striking off the defence for non-compliance of an order of pendente lite maintenance, an opportunity has to be given to show cause why the defence should not be struck off or reasonable time has to be given to clear the arrears of maintenance ordered. 

A woman along with her minor daughter (respondents herein) filed a plea before the Family Court seeking the return of gold ornaments, patrimony and maintenance. Thereafter, the appellant-husband filed an objection.

Meanwhile, the respondents filed an application invoking Section 24 of the Hindu Marriage Act,1955 and Section.151 of the Code of Civil Procedure,1908 claiming pendente lite maintenance from the appellant at the rate of 7,000/- and 8,000/- respectively.

This application was allowed by the Family Court, and the appellant was directed to pay maintenance of 5,000/- per month to the respondents till the disposal of the petition.

When the appellant failed to comply with this order, the respondents filed another application under Section151 of CPC to strike off the appellant's defence.  

The Family Court allowed this application as well, and the appellant's defence was accordingly struck off. 

Therefore, relying on the ex parte evidence given by the respondents, the original petition was allowed and the appellant was directed to return 38½ sovereigns of gold ornaments, a sum of `1,80,000 and pay respondents maintenance of Rs. 5000 each per month.

Challenging this judgment, the appellant moved the High Court.

Advocates S. Sanal Kumar, Bhavana Velayudhan and T.J. Seema appearing for the appellant argued that the order for payment of pendente lite maintenance was passed without jurisdiction and hence, his defence could not have been struck off.

They further submitted that the Family court hurriedly disposed of the applications even without giving an opportunity to the appellant to show cause or make the payment. 

On the other hand, Advocates K.S. Madhusoodanan, Joby Jacob Pulickekudy and Arun Kumar appearing for the respondents supported the impugned judgment. 

Two questions arose before the Court: 

(1) Whether an application for maintenance pendente lite u/s 24 of the Hindu Marriage Act, 1955 would lie in a proceeding other than under the said Act?

(2) Under what circumstances can the Family Court strike off the defence for non-compliance of the order to pay pendente lite maintenance?

Upon considering several judicial decisions, the Court found that the inherent power under S.151 of CPC to strike off the defence on failure to pay pendente lite maintenance ordered by the court can be invoked only in a case where the default is found to be willful and contumacious, that too to an unemployed wife and minor child. 

Examining the facts of the present case, the Division Bench found that the respondents had preferred an application under S.24 of the Hindu Marriage Act for maintenance pendente lite.

However, it was noticed that such an application would only lie in proceedings under the Hindu Marriage Act.

On the contrary, the petition preferred by the respondents claiming the return of gold ornaments, patrimony and maintenance was under the Family Courts Act.

"No application for maintenance pendente lite u/s 24 of the Hindu Marriage Act, 1955 would lie in a proceeding other than under the Hindu Marriage Act, 1955. Thus, IA No.1119/2012 is not maintainable u/s 24 of the Hindu Marriage Act, 1955," the Court observed. 

Therefore, the Court took the view that the Family Court's order allowing the application for maintenance pendente lite was without jurisdiction. The Bench found the next order striking off the appellant's defence to be a consequential order.

"When the original order is found to be without jurisdiction, the consequential order cannot be sustained," the order stated. 

Moreover, it was noticed that the appellant was given hardly three months before his defence was struck off. Therefore, no reasonable time or opportunity was given to the appellant to show cause why his defence should not be struck off.

As such, the Court ruled that the defence of a party can only be struck off after having granted them a reasonable opportunity of being heard and allowed the appeal. 

Case Title: Shyju P.K. v. Nadeera & Anr.

Citation: 2022 LiveLaw (Ker) 28

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