- The Kerala HC has held, in the case of Shyju P.K. vs. Nadeera and Anr. that defence can be struck off for the non- payment of maintenance pendente lite only when the default is deliberate and is wilful.
- In the instant case, a woman along with her minor daughter (respondents in the current case) filed a petition before the Family Court seeking the return of gold ornaments and maintenance. The husband then filed an application to the same.
- The respondents filed an application under section 24 of the Hindu Marriage Act and section 151 of CPC claiming maintenance pendente lite from the husband at the rate of 7000/- and 8000/- respectively.
- This application was allowed and the husband was directed to pay Rs. 5000 till the conclusion of the proceedings. When he failed to comply with this order, the respondents filed an application under section 151 CPC to strike off the defence of the husband. This application was again allowed and the husband’s defence was struck off.
- Relying upon the exparte evidence of the respondents, the original petition was allowed and the husband was directed to pay a sum of 1,80,000/- and 5000/- as maintenance every month.
- The appellant moved the HC, challenging this judgement.
- After taking into account several judicial decisions including Mangalam vs. Velayudhan Asari (1992) the Court held that the power of the Court to strike off the defence under section 151 CPC can only be exercised in the case the default in paying the maintenance pendente lite is found to be deliberate and wilful.
- The Court also observed that the maintenance pendente lite was claimed under section 25 of the HMA whereas the petition claiming the gold ornaments and maintenance were preferred under the Family Courts Act. On this, the Court concluded that the order for the payment of maintenance pendente lite by the Family Court was without jurisdiction.
- The Court also observed that the order striking off the defence was an order consequential to the grant of maintenance. In this regard, the Court observed that since the original order was found to be without jurisdiction, any consequential order cannot be sustained.
- Taking note of the fact that the appellant (husband) was not even given three months before his defence was struck off, the Court observed that the defence of a party can be struck off only when he has been given a reasonable opportunity of being heard.
- Thus, the appeal was allowed and the order of the Family Court was set aside.
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