If Default Is Deliberate Then Defence Can Be Struck Off For Non-Payment Of Pendente Lite Maintanence: Shyju PK Vs Nadeera & Anr

DATE OF JUDGMENT:
05/10/2021

BENCH:
MR. JUSTICE A. MUHAMED MUSTAQUE & DR. JUSTICE KAUSER EDAPPAGATH

PARTIES:

PETITIONER:
SHYJU P.K

RESPONDENT:
1) NADEERA
2) NIKITHA

SUBJECT

This case deals with the non-compliance of payment of pendente lite maintenance by the husband to the wife and the minor daughter.

LEGAL PROVISIONS:

1. Hindu Marriage Act, 1955
2. Section 24 of Hindu Marriage Act, 1955

OVERVIEW

1. The petitioner was the husband (Shyju P.K) whereas the respondents were the wife (Nadeer) and their minor daughter (Nikitha), who is major currently.
2. The respondents submitted OP No.304/2012 in the Family Court of Alappuzha (known as 'the court below' usually) seeking the restoration of gold jewellery, inheritance, and maintenance.
3. The petitioner made an appearance in the lower court and submitted an opposition statement. During the proceeding of the initial plea, the respondents submitted IA No.1119/2012, demanding pendente lite support from the petitioner under S.24 of the Hindu Marriage Act, 1955 and S.151 of the Code of Civil Procedure, 1908 (for short "CPC"), accordingly.
4. The tribunal below granted the appeal and ordered the petitioner to provide the respondents maintenance at the rate of '5,000/- per month from the time of application until the OP was resolved. The respondents issued IA No.918/2014 citing S.151 of the CPC to throw off the appellant's argument after the plaintiff refuse to follow with the order.
5. The petition was granted, and the appellant's argument was dismissed. Following that, the 1st respondent filed an evidence affidavit and tagged papers. The initial appeal was granted based on the respondents' ex parte testimony, as indicated in the ruling of October 8, 2014. The petitioner was ordered to surrender 38112 sovereigns in gold jewellery and an amount of '1,80,000/- to the court. From 5/3/2012 forward, the petitioner was additionally asked to pay support to the respondents at the rate of '5,000/- per month.
6. In the appeal, the stated judgment was being challenged. The petitioner, dissatisfied with the judgement, moved to the High court where the appellant's attorneys, S. Sanal Kumar, Bhavana Velayudhan, and T.J. Seema, contended that the judgment for provision of pendente lite maintenance was issued lacking authority, and thus his appeal couldn't be dismissed.
7. They also claimed that the Family Court dismissed the petitions without providing the petitioner a chance to demonstrate reason or make the appropriate payment.
8. But Advocates K.S. Madhusoodanan, Joby Jacob Pulickekudy, and Arun Kumar who represented the respondents, backed the challenged judgement.

ISSUES

1. Whether a petition for support pendente lite per Section 24 of the Hindu Marriage Act, 1955, would indeed be admissible in a procedure not governed by that Act?
2. In what situations might the Family Court dismiss the opposition for failing to comply with a court order to provide pendente lite maintenance?

JUDGEMENT ANALYSIS

1. The Court determined that the intrinsic authority under S.151 of the CPC to knock off from the defence on non-payment of the pendente lite maintenance ordered by a judge can be exercised only in cases in which the default is discovered to be intentional and contumacious, and that too to an unemployed wife and minor child, after contemplating so many legal decisions.
2. The Division Bench found out that the respondents had filed an issued under Section 24 of the Hindu Marriage Act after reviewing the facts of the matter.
3. Nevertheless, it was noted that this very petition will only be admissible in Hindu Marriage Act hearings.
4. In Padam Sen v. State of Uttar Pradesh (AIR 1961 SC 218), the Supreme Court declared unequivocally that authorities under Section 151 of the Code do not extend to basic rights of the parties.
5. As a result, S.151 of the CPC couldn’t be used to keep the petition alive. The Hindu Adoptions and Maintenance Act, 1956 does not have a clause for giving maintenance pendente lite, as does S.24 of the Hindu Marriage Act, 1955. In any case, no reason had been presented to the Court that would allow it to uphold the decision under the Hindu Adoptions and Maintenance Act of 1956.
6. The defendants' appeal for the restoration of gold jewellery, inheritance, and maintenance, on the other hand, was filed under the Family Court Act.
7. As a result, the Court determined that the Family Court's judgement granting the maintenance pendente lite motion lacked jurisdiction. The very next judgment dismissing the appellant's case was deemed a significant decision by the Court.
8. The court therefore ruled that, “When the original order is found to be without jurisdiction, the consequential order cannot be sustained.”
9. Furthermore, it was noted that the appellant's argument was cut off after only 3 months. As a result, the petitioner wasn't really offered a decent timeframe or chance to give reasons why his defence ought not be dismissed.
10. As a result, the Court determined that a group's defence can only be knocked down after they have been given a sufficient opportunity of being heard and the appeal has been authorised.

CONCLUSION

The Kerala High Court has declared that a party's plea can be knocked off for failure to comply with a judgment for payment of pendente lite maintenance as a last option and even if the default is purposeful and intentional.The court below must give both sides a chance to present proof before deciding the appeal on the grounds in conformity with the law. Because this is a 2012 case, the court below made every attempt to resolve the appeal as soon as practicable. The parties were hence held responsible for their own charges.

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