Striking off the Defence in Proceedings Relating to Matrimonial Disputes; Ambit & Scope of [JUDGMENT]

Striking off the defence is a drastic action especially in proceedings relating to matrimonial disputes. An order striking off the defence has tremendous impact on the fate of the litigation and the rights of the parties. It renders the party defenceless. The ambit and scope of the power of the court in that regard arise for consideration in this appeal.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ.

Mat.Appeal No.598 of 2016

Dated this the 11th day of July, 2018 

(AGAINST THE ORDER/JUDGMENT IN OP 706/2013 OF FAMILY COURT, OTTAPPALAM) 

APPELLANTS/RESPONDENTS

SHAFI AND ANOTHER

BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD 

RESPONDENT/PETITIONER

RAIHANATH

BY ADV. SRI.P.JAYARAM

J U D G M E N T 

R. Narayana Pisharadi, J 

Striking off the defence is a drastic action especially in proceedings relating to matrimonial disputes. An order striking off the defence has tremendous impact on the fate of the litigation and the rights of the parties. It renders the party defenceless. The ambit and scope of the power of the court in that regard arise for consideration in this appeal.

2. The appellants are the husband and his father. The respondent is the wife. She filed O.P.No.706 of 2013 in the Family Court, Ottapalam against her husband and his father seeking a decree for return of her gold ornaments and also claiming past maintenance. The appellants filed objections to the claim raised by her. Meanwhile, she filed an application as I.A.No.745 of 2014, claiming interim maintenance for her and two minor children from the husband. As per the order dated 20.3.2015 passed in that application, the Family Court directed the husband to pay interim monthly maintenance at the rate of Rs.1,500/- per month to the wife and Rs.1,000/- per month to each of the two minor children and also litigation expenses of Rs.3,000/-. Alleging that the husband failed to comply with the aforesaid order for payment of maintenance, the wife filed an application as I.A.No.123 of 2016 to strike off the defence of her husband and his father in O.P.No.706 of 2013. As per the order dated 11.2.2016 in that application, the Family Court struck out the defence of the husband and his father in O.P.No.706 of 2013. Thereafter, as per the impugned judgment dated 26.2.2016, the Family Court directed the husband and his father to return 60 sovereigns of gold ornaments and Rs.1,50,000/- to the wife or to pay her Rs.16,50,000/-. The husband was also directed to pay a total amount of Rs.4,36,000/- to the wife towards past maintenance. The appellants have challenged this judgment in this appeal.

3. We have heard the learned counsel for the appellants and also the respondent.

4. Learned counsel for the appellants has contended that the order of the lower court striking out the defence of the appellants in O.P.No.706 of 2013 is illegal and improper. Learned counsel would contend that the Family Court should have taken note of the fact that the husband was regularly paying the amount of maintenance ordered to be paid by him to the wife in other proceedings filed by her and that the Court should have adjusted the amount so paid towards the amount of maintenance ordered to be paid by him in O.P.No.706 of 2013. Per contra, the learned counsel for the respondent has contended that the appellants did not pay any amount in compliance with the order passed by the Family Court in I.A.No.745 of 2014 and therefore, the lower court was perfectly justified in passing an order striking out the defence of the appellants in the main petition.

5. The appellants have not challenged in this appeal the order passed by the lower court granting maintenance to the wife and two minor children. But, they have challenged the order passed by the lower court in I.A.No.123 of 2016 striking off their defence in the main petition.

6. True, the appellants did not challenge the order passed by the lower court in the application I.A.No.123 of 2016 to strike out their defence as and when that order was passed by the court. But, the fact that they did not challenge the aforesaid order then will not preclude or prevent them from challenging it in the appeal filed against the final order or judgment passed by the court in the main petition. If the rule is that at every stage of the litigation, a decision not appealed shall be held to be finally decided, precluding the party from challenging it in the appeal filed against the final order or judgment, it will become necessary for a litigant against whom an interlocutory order is passed, to approach the higher court for redress of his grievances, every time when such order is passed against him. Very often, though the interlocutory order is passed against a party, the final order may be passed in his favour. Repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made or passed would cause delay in the progress of the litigation. This mischief can be avoided or prevented when a party is given the right to challenge the correctness of any interlocutory order, which had not been appealed from but which has affected the decision of the case, in the appeal filed against the final order or judgment. An interlocutory order, which is not challenged in appeal or revision or by way of other remedies, can be challenged in the appeal filed against the final judgment or order. A party to a proceeding before a subordinate court is not obliged to question every order passed therein before a superior court as and when the same is passed. A party is not bound to appeal against every interlocutory order which is a step in the procedure that leads up to a final decision. He can wait till the proceeding terminates and final decision is rendered therein. On being aggrieved by the final decision, when he challenges it before the superior court, he can also canvass the correctness of any order passed by the subordinate court, if the same has affected the final decision (See Satyadhyan Ghosal v. Deorjin Debi: AIR 1960 SC 941).

7. As noticed earlier, the application I.A.No.123 of 2016 was filed by the wife for striking out the defence of the appellants on the ground that they did not comply with the order passed against them in I.A.No.745 of 2014 directing them to pay interim maintenance to her and the children. The first appellant had filed objection to the application I.A.No.123 of 2016. He stated in the objection that he has been regularly paying the interim maintenance. He further stated that he has been paying the maintenance in C.M.P.No. 267 of 2014 pending before the Family Court. He also stated that he has also been regularly paying the amount of maintenance in M.C.No.62 of 2012 filed by the respondent under the Protection of Women from Domestic Violence Act in the Magistrate's Court concerned.

8. Learned counsel for the appellants would contend that the Family Court should have adjusted the amount paid by the husband in other proceedings initiated against him by the wife towards the maintenance ordered to be paid by him in O.P.No.706 of 2013. Learned counsel would rely upon the decision in Sudeep Chaudhary v. Radha Chaudhary (AIR 1999 SC 536) in support of this contention. The Apex Court has held in this decision that the amount awarded under Section 125 Cr.P.C for maintenance is adjustable against the amount awarded in the matrimonial proceedings.

9. The challenge made by the appellants to the order passed by the lower court I.A.No.123 of 2016 on the basis of the decision in Sudeep Chaudhary (supra) is without any merit. In the first place, no specific plea was raised by the husband in the objection filed by him to the aforesaid application that the amount paid by him towards maintenance in other proceedings was liable to be adjusted towards the amount of maintenance ordered to be paid by him in O.P.No.706 of 2013. In the second place, even assuming that even without such a specific plea the lower court was bound to adjust the amount paid by the husband in other proceedings towards the amount of maintenance ordered to be paid by him in O.P.No.706 of 2013, it was incumbent upon the husband to furnish before the Family Court the details of the payments made by him in other proceedings. The objection filed by the appellants did not contain the details of payments made in M.C.No.62 of 2012 in the Magistrate's Court concerned. In the absence of the details of payment of amount allegedly made by the appellants in a proceedings which were pending in another court and in the absence of proof of such payments, the Family Court could not have made any adjustment as pleaded by the appellants.

10. It is mentioned in the objection filed by the appellants to the application I.A.No.123 of 2016 that the husband has been paying the maintenance in C.M.P.No.267 of 2014 pending before the Family Court. It is not known what was the relief prayed for in C.M.P.No.267 of 2014. In the memorandum of appeal, no mention is made about any proceedings in C.M.P.No.267 of 2014. Nothing is also mentioned in the memorandum of appeal with regard to M.C.No.62 of 2012 which was pending in the Magistrate's Court. On the other hand, mention is made in the memorandum of appeal about M.C.No.12 of 2013 pending before the Family Court and payment made by the appellants in that proceedings. But, in the objection filed by the appellants to the application I.A.No.123 of 2016, nothing is mentioned about M.C.No.12 of 2013 pending before the Family Court and payments allegedly made by the appellants in that proceedings.

11. At any rate, in the absence of details being furnished to the Family Court regarding payments towards maintenance allegedly made by the appellants in other proceedings and in the absence proof of such payments, the lower court was justified in finding that the appellants failed to comply with the order passed by it in I.A.No.745 of 2014.

12. The power of the court under Order 6 Rule 16 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to strike out the defence can be exercised only in the specific circumstances mentioned therein. Unless any of the circumstances which are referred to in Order 6 Rule 16 of the Code are present, the court cannot strike off the defence in exercise of the power under that provision. But, outside the provisions contained Order 6 Rule 16 of the Code, the court has inherent power to strike off defence. A court is meant to do justice and it is intended to be an effective adjudicator of disputes. Then, it must inevitably be clothed with necessary power to deal with situations which may arise where the court must have power to strike off defence so that the people will continue to repose faith in the system and resort to lawful means which are provided by the courts. It is for the purpose of preserving its power and effectiveness that the courts have recognized inherent power to strike off the defence (See Jayasree v. Vivekanandan : 2012 (2) KHC 199 : 2012 (2) KLT 249).

13. There is inherent power in the court to pass such orders as are necessary for the ends of justice or to prevent the abuse of the process of the court. Section 151 of the Code saves the inherent powers of the court and, in exercise of that power, the court can strike off the defence in deserving cases for meeting the ends of justice. If a party to a proceedings before the court has wilfully disobeyed the orders of the court, the court can strike off the defence. Striking off the defence of the spouse, who does not honour the order of the court, is the instant relief that can be granted to the opposite party. The court cannot be a mute spectator watching flagrant disobedience of the interim orders passed by it showing its helplessness in instant implementation of such orders. Law is not that powerless. If the husband has wilfully failed to make payment of maintenance and litigation expenses to the wife, his defence can be struck out in exercise of the powers under Section 151 of the Code.

14. The considerations which weigh with the court in an application under Order 6 Rule 16 of the Code and in a case of exercise of inherent power are completely different. True, in the instant case, the application for striking out the defence was made by the wife under Order 6 Rule 16 of the Code. But it is well settled that the omission to refer to the correct provision of law which is the source of power of the court, or the mentioning of a wrong provision, will not by itself render an order invalid or illegal. Law is well settled that it is the substance and not the form which is to be looked into by a court of law while deciding any lis and appropriate relief to a party shall not be withheld on the technical ground that the nomenclature of an application has been made wrongly. Non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the court has the requisite jurisdiction to pass an order (See Nagappa v. Muralidhar : AIR 2008 SC 2010). Mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. Wile exercising its power, the court will merely consider whether it has the source to exercise such power or not (See Kumaradasan Nair v. IRIC Sohan: AIR 2009 SC 1333). If an authority has a power under the law, merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law (See N.Mani v. Sangeetha Theatre: (2004) 12 SCC 278 and Ram Sunder Ram v. Union of India : (2007) 13 SCC 255).

15. In the instant case, there was no material produced by the appellants before the lower court to prove that they had paid the amount of maintenance and litigation expenses and complied with the order passed by the court in I.A.No.745 of 2014. Then, the lower court could have only come to the conclusion that they flouted the orders of the court without any reasonable cause. In the said circumstances, we are of the view that the Family Court was perfectly justified in passing an order to strike off the defence of the appellants.

16. The judgment of the Family Court is not challenged on any other ground. However, learned counsel for the appellants submitted that they are ready to deposit half of the amount of maintenance ordered to be paid by the husband as per the decree and on that condition the order passed by the lower court to strike off the defence may be set aside and the decree may also be set aside. We are inclined to accept this submission. As per the decree, the total amount ordered to be paid towards maintenance comes to Rs.4,36,000/-. Half of this amount comes to Rs.2,18,000/-. Learned counsel for the appellants has submitted that they have paid Rs.70,000/- in the execution petition and this amount may be adjusted towards the amount that shall be deposited by them. But, we find that in the order dated 05.04.2018 in E.A.No.22 of 2018, the lower court has noted that the amount paid by the appellants in the execution petition is only Rs.20,000/-. If we order that the appellants shall deposit half of the decree amount of maintenance and that the amount paid by them in the execution petition shall be adjusted towards the half amount, there is chance of disputes being raised in the lower court regarding the exact amount paid by the appellants in the execution petition and it may also create the basis for starting another round of litigation between the parties. In order to avoid such a situation, we deem it proper to direct the first appellant to deposit a definite sum in the lower court towards maintenance payable to the respondent and the minor children. Considering the facts and circumstances of the case, we find that it is just and reasonable to direct the first appellant to deposit an amount of Rs.1,80,000/- in the Family Court.

17. In the result, we allow the appeal and set aside the order dated 11.2.2016 in I.A.No.123 of 2016 in O.P.No.706 of 2013 on the file of the Family Court, Ottapalam and also the judgment of that court in O.P.No.706 of 2013 on the condition that the first appellant shall deposit Rs.1,80,000/-(Rupees one lakh and eighty thousand rupees) in that court within one month from today, towards the maintenance of the respondent and the minor children. On deposit of the amount, O.P.No.706 of 2013 shall stand restored to file and the Family Court shall dispose of it in accordance with law at the earliest. The respondent is at liberty to withdraw the amount. Needless to say, on failure of the first appellant to deposit the aforesaid amount as directed above within the stipulated period, the decree passed against the appellants in O.P.No.706 of 2013 shall subsist and the respondent will be at liberty to execute the decree. The proceedings in execution of the decree in O.P.No.706 of 2013 on the file of the Family Court, Ottapalam shall stand stayed for a period of one month from today. The parties shall suffer their respective costs in the appeal.