Full Judgment Text
1 WP747.2012
KJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.747 OF 2012
IN
PETITION NO.C-20 OF 2010
Mr.Rajesh H.Parikh )
E/15, Bussa Apartment, B.M.Bhargave Marg)
Santacruz (W), Mumbai-400 054 )..Petitioner
(Org.Respondent)
V/s.
Mrs.Deepika R. Parikh )
E/15, Bussa Apartment, B.M.Bhargave Marg )
Santacruz (W), Mumbai-400 054 )..Respondent
(Org.Petitioner)
----
Mrs.Taubon F.Irani for the petitioner.
Mr.R.J.Lalwani for the respondent.
CORAM : MRS.MRIDULA BHATKAR, J.
th
DATE : 7 March, 2012.
JUDGMENT :-
1 Rule. Rule made returnable forthwith. By consent of
parties, heard finally at the stage of admission.
2 Judge, Court No.3 of the Family Court, Bandra, Mumbai by
its order dated 18.11.2011 has allowed the application of the
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respondent-wife for striking off the defence on the ground of non
compliance of the Court’s order of maintenance.
3 The petitioner is a husband of the respondent. They got
married on 3.5.1983. However, the marriage did not sail smooth and
parties approached the Court by filing petitions against each other.
Wife filed petition for divorce bearing No.A-1796 of 1997 under Section
13(1) IA of Hindu Marriage Act of 1955. Thereafter the petitioner-
husband also filed petition for divorce on the ground of cruelty which is
numbered as A-1803/1998. Proceedings under Section 498-A of IPC
are also pending against the husband in the criminal court. The parties
arrived at an agreement to settle the matter amicably and filed consent
terms on 31.8.2004. One of the consent terms agreed by the parties
was that the parties will reside together in the flat at Bussa Apartment,
Santacruz and if respondent-wife was required to leave the said flat
and stay separately, in that event, the petitioner-husband should pay
sum of Rs.8 lakhs before removing the respondent-wife from the
house. Both the parties agree to withdraw the respective petitions filed
against each other. However, it appears that the parties did not
behave as per the consent terms. So the petitioner-husband filed a
Petition No.1815 of 2006 for compliance of the consent terms. In the
said petition, wife filed the Application No.A-1365 of 2006 and prayed
for interim maintenance. The Court while deciding the said application
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on 14.10.2008 fixed the amount of maintenance of Rs.3000 per month
to the wife. Petitioner-husband found that it is not possible for him to
deposit the amount of maintenance of Rs.3000, hence withdrew the
said petition on 29.8.2009.
4 Respondent-wife thereafter filed Petition No.C-20 of 2010
under Section 18 of the Hindu Adoption & Maintenance Act of 1956.
Respondent filed written statement on 25.2.2011. In the said petition,
respondent-wife filed an application for striking off the defence for non
compliance of the order of maintenance passed by the Court in the
Petition No.A-1365 of 2006. He demanded that respondent should pay
the arrears from 14.9.2006 till 29.8.2009 i.e the date of the withdrawal
of the petition. The application was contested by filing reply by the
petitioner-husband. The learned Judge of the Family Court held that
the petitioner-husband has not paid even a single paisa and arrears of
maintenance amount is more than Rs.1 lakhs. The Judge held that on
failure of the compliance of the order of interim maintenance, his
defence is struck off under the provisions of Order-39 Rule-11 read
with Section 151 of CPC.
5 Learned Counsel for the petitioner argued that the
respondent-wife has not complied with the consent terms and said
consent terms are binding on the parties as they have signed and
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accepted the terms before the Court. She submitted that the petitioner
is always ready and willing to perform as per the consent terms.
Petitioner-husband is ready to pay Rs.8 lakhs to the respondent in lieu
of the said flat and she should vacate the same. It is submitted that the
order passed by the Family Court Judge striking off the defence is a
wrong order.
6 In reply, learned Counsel for the respondent-wife has
submitted that not only the consent terms were flouted by the
respondent but the order of the court to pay maintenance of Rs.3000
per month is disobeyed by the husband. He submitted that the order of
striking defence can be passed by the Family court under Section 151
of CPC. He relied on judgments of Neeta Shreyas Joshi Vs. Shreyas
S.Joshi reported in AIR 1991 Gujrat 251 and also on Vanmala, wife of
Moroti Hutkar V/s. Maroti Sambhaji Hatkar, reported in 1999(2) Mh.L.J.
297. He submitted that the court is also empowered to pass order
under Order 39 Rule-11 of CPC.
7 Admittedly, the order of maintenance of Rs.3000/- per
month passed by the court is not obeyed by the petitioner-husband.
The amount of maintenance claimed is only between the period when
the order was passed and when the petition was withdrawn.
Technically when the petition was withdrawn the order of maintenance
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of Rs.3000/- did not survive from the date of the withdrawal of the
petition. Naturally, the demand of arrears is made till the withdrawal of
the petition which is more than Rs.1 lakhs. It is true that for recovery of
the said arrears, respondent-wife has a remedy of file separate
recovery petition or a petition for contempt. Question is whether
disobedience of that order can be taken into account as a ground to
strike off the defence and whether Court has such power to do
so?
8 The court has power to strike off the defence under
order 39 rule 11 where the proceedings are taken out for temporary
injunction and interlocutory orders. Under Section 151 inherent power
vests with the Court to enable it to pass such orders which are
necessary to meet the ends of justice and to prevent abuse of process
of law. Maintenance may be permanent or temporary relief which wife
can claim in any matrimonial proceedings. The proceedings may be for
divorce, may be for separation or for custody or injunction. Under Code
of Civil Procedure, Court has power to strike off defence of the erring
party. Such power is given to the Court under Order-11 Rule-21.
Similarly under Order 15 rule-5 which is a state amendment introduced
by UP & Punjab & Hariyana like the amendment under Order-39 Rule
11 which is a state amendment of State of Maharashtra. A court has
power to strike off defence of a party if that party does not comply or
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disobey the orders of the court. It is a courts expression of disapproval
towards the conduct of the defaulter. To strike off defence is a
discretionary power but may have drastic effects; so not to be used
arbitrarily but it is to be used to reprimand the party who has no regard
for the orders and procedure of the Court. It is a kind of punitive action
taken by the Court.
9 On this background, the impugned order passed by the
Family Court is to be looked into. The husband has filed a petition for
compliance of the consent terms and in that petition, Court has passed
the order of interim maintenance of Rs.3000/- per month against the
husband. The petition was pending. As per the consent terms, the
petitioner showed readiness to pay Rs.8 lakhs towards the permanent
maintenance if wife leaves the flat. The husband showed his readiness
in the said petition demanding compliance of the consent terms.
However, the order of the interim maintenance passed by the Court
was not complied by the petitioner. Once the order of interim
maintenance was passed by the Court, it was binding on husband to
pay the interim maintenance. It was not a permanent maintenance but
it was an interim maintenance which is to be paid by the husband
towards a stop-gap financial arrangement made in favour of the wife
to enable her to maintain herself. He flouted the orders of the Court
by withdrawing the said petition. The intention to withdraw the petition
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was neither innocuous nor honest. The intention to avoid maintenance
and to disobey the order of the court was explicitly clear. Withdrawal of
petition was a cunning move to frustrate the court order. No doubt, the
respondent-wife could have filed separate petition for recovery of the
arrears of the maintenance amount, for that, she needs to file and
pursue one more petition. In this petition for divorce filed by her in the
Family Court a request to strike off his defence was made as he did
not pay the arrears of the maintenance in the said withdrawn suit.
10 In the cases pertaining to the matrimonial relations an
issue of maintenance is common and is raised in all those proceedings.
So the Court has discretionary power to ask the defaulter husband to
clear the arrears due in one petition while entertaining the other
matrimonial proceedings. No hyper-technical approach can be taken
by the Judge but litigant friendly approach is required. Various
matrimonial disputes arise wherein incident of marriage is the root
cause and other proceedings like restitution of conjugal rights,
maintenance under various Acts, petition for divorce and custody etc.
branch out of the same issue of matrimonial discord. Thus it is one
and the same continuous process wherein the wife’s right to maintain
uninterruptedly flows. This right is acknowledged by the law hence
to be honoured and vindicated by the Court. Therefore, if husband has
not paid the arrears, it is upto the Judge to consider all the prevailing
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circumstances and if he thinks fit, just and appropriate in the totality of
circumstances to strike off the defence, then he is justified to do so.
Thus the order passed by the Family Court Judge is correct, legal
hence it is maintainable. I find no merit in the petition. Writ petition is
dismissed.
Six weeks time is granted to the petitioner-husband to
deposit the amount to clear the arrears in the Family Court and
respondent-wife is allowed to withdraw the same.
(Judge)
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