Dismissed

Chanchala Rajam v. Rajam Deenabandhu

Orissa HC2 Sept 2023WP(C)/27553/2023

Case brief

AI extract

What is this about?

Petitioner challenged an order dismissing her application to strike off the respondent husband's pleadings in a divorce case due to his alleged non-payment of maintenance. The Court held that striking off pleadings for non-payment applies only to orders passed within the same civil proceeding, not to separate criminal maintenance cases, and dismissed the writ.

What did the court decide?

Writ petition standing dismissed as the Law Court found no infirmity in the impugned order refusing to strike off pleadings for non-payment in separate maintenance proceedings.

Chanchala Rajam Vs Rajam Deenabandhu — Matrimonial and Divorce | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). NO.27553 OF 2023 Chanchala Rajam …. Petitioner

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…. Petitioner Mr. P.V. Balakrishna, Advocate

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-versus-

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Rajam Deenabandhu

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…. Opp. Party

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

02.09.2023

This matter is taken up through hybrid mode.

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Order dated 4^th July, 2023 (Annexure-9) passed by learned Judge, Family Court, Paralakhemundi is under challenge in this writ petition, whereby an application filed by the Petitioner under Section 151 CPC to strike off the pleadings of the Opposite Party-Husband and to dismiss the petition filed for dissolution of marriage by decree of divorce, has been rejected.

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Mr. Balakrishna, learned counsel for the Petitioner submits that the Opposite Party-Husband has filed Civil Proceeding No.18 of 2023 for dissolution of marriage by decree of divorce. Although, no order under Section 24 of the Hindu Marriage act, 1955 (for short ‘the Act’) has been passed in the said civil proceeding, but in a proceeding initiated under Protection of Women from Domestic Violence Act, 2005, the Opposite Party has been directed to pay monthly pendente lite maintenance to the Petitioner which he has defaulted. It is his submission that the Opposite Party has also been directed to pay maintenance in Misc. Case No.36 of 2008 initiated under

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Section 125 Cr.P.C. Since the Opposite Party has failed to pay the maintenance as above and the Petitioner does not have any independent source of livelihood, an application under Section 151 CPC was filed to strike off the pleadings of the Opposite Party and dismiss the civil proceeding. Learned Judge, Family Court, without considering the matter in its proper perspective most illegally rejected the petition. Hence, this writ petition has been filed.

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Mr. Balakrishna, learned counsel for the Petitioner relied upon the decision in Rajnesh Vrs. Neha and others in (2021) 2 SCC 324 in which it is held as under:

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“The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the Code of Civil Procedure, more particularly Sections 51, 55, 58,60read with Order XXI.

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Striking off the defence of the Respondent is an order which ought to be passed in the last resort, if the Courts find default to be willful and contumacious, particularly to a dependent unemployed wife, and minor children.

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Contempt proceedings for willful disobedience may be initiated before the appropriate Court..........

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For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced Under Section 28A of the Hindu Marriage Act, 1956 (sic 1955); Section 20(6) of the D.V. Act; and Section 128 of Code of Criminal Procedure, as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the Code of Civil Procedure, more particularly Sections 51, 55, 58, 60 r.w. Order XXI.”

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He, therefore, submits that law is very clear on the point that when the party who is directed to pay maintenance fails to comply with the same, the Court may take coercive measure

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including striking off his pleadings. In the instant case, learned Judge, Family court failed to appreciate the position of law and passed the impugned order. Hence, the impugned order is liable to be set aside.

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Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that I.A. No.4 of 2023 was filed in a civil proceeding for dissolution of marriage by a decree of divorce. Admittedly, no order of pendente lite maintenance has been awarded in the civil proceeding. It appears that the Petitioner was awarded maintenance in a proceeding under Section 125 Cr.P.C. in Mic. Case No.36 of 2008 and in a proceeding under Section 12 of the PMDV Act in 2(c) CC No.26 of 2010. It is alleged that the Opposite Party failed to comply with those orders. Thus, the Petitioner has remedy to realize the same.

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Law is well settled that if the Petitioner fails to comply with an order under Section 24 of the Act, learned Court may entertain the prayer to strike off the pleadings in the civil proceeding in which said order of pendente lite maintenance has been passed.

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In the instant case, the Petitioner alleges that she was not paid maintenance in a proceeding under 125 Cr.P.C. and also in a proceeding under Section 12 of the PMDV Act. Non-payment of maintenance in different proceedings other than the civil proceedings cannot be considered for striking off the pleadings of the Opposite Party as has been rightly held by learned Judge, Family Court, Paralakhemundi. Thus, the ratio decided in the case of Rajnesh (supra) is of no assistance to this Petitioner.

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