The Kerala High Court recently comprising of a bench of Justice Kauser Edappagath ruled that a Court can strike off the defence of the defaulter if they deliberately or willfully refuse to comply with its order directing payment of interim maintenance under the Protection of Women from Domestic Violence Act (DV Act). (Neethu v. Trijo Joseph)
Facts of the case
The petitioner was the wife of the respondent therein. She filed a case at the Judicial First-Class Magistrate Court, Njarakkal (for short ‘trial court’) u/s 12 of the Protection of Women from Domestic Violence Act, 2005 (for short, the DV Act) seeking various reliefs including maintenance. She had also moved an application for interim maintenance u/s 23(2) as CMP No.1087/2018. It was allowed ex parte and interim maintenance of `15,000/- was awarded to the petitioner.
The said order was challenged by the respondent at the Sessions Court-II, North Paravur in Criminal Appeal. The respondent sought a stay of the interim order passed by the trial court. The appellate court dismissed the stay petition as per Ext.P1 order with an observation that the Magistrate shall consider the contentions of the respondent and pass final order in the application for interim maintenance. Thereafter, the respondent was given an opportunity to file an objection to CMP No.1087/2018. After considering the objection, the trial court confirmed the ad interim order and directed the respondent to pay all the arrears of maintenance within two weeks as per Ext.P3 order.
Since the husband failed to comply with this, the wife moved the Magistrate to strike off his defence in the case. But this was dismissed on the ground that as per S.28(1) of the Act, all proceedings under Section 12 shall be governed by the provisions of the CrPC but there was no provision in the Code to strike off the defence. Aggrieved by this, she moved the High Court.
Court's observations and Judgment
The bench at the very outset observed, "In a proceeding under the DV Act, the defence can be struck off for non-compliance with an order of payment of pendente lite maintenance if the default is found to be deliberate and wilful. However, such an order ought to be passed only as a last resort as held in Rajnesh (supra)”.
The court noted, “It cannot be said that Court is bound to strictly abide by the provisions of CrPC in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C.”
Moreover, “Merely because the jurisdiction is exercised by the criminal court/Magistrate and the provisions of the Code of Criminal Procedure are followed, it does not change the character of the proceedings as criminal proceedings. The character of the proceedings depends not upon the nature of the forum which is invested with authority to grant relief, but upon the nature of the relief sought to be enforced. A proceeding that deals with the right of civil nature does not cease to be so just because the forum for its enforcement prescribed by the statute is the criminal court.”
The bench remarked, "Section 28(2) of the DV Act provides that the court can formulate its own procedure for disposal of an application under Sections 12 or 23(2) of the DV Act. The flexibility has been given to the court as the proceedings under Sections 12 and 18 to 23 provide civil remedies whereas S.31 provides a criminal offence. The Apex Court in Kunapareddy (supra) considered the nature of proceedings under the DV Act and held that S.28(2) empowers the court to lay down its own procedure and the Magistrate dealing with the DV Act is empowered to allow the amendment of the application.
Thus, it is clear that even though S.28(1) of the DV Act provides that all proceedings under Ss.12 and 18 to 23 and for the offence under Section 31 shall be governed by the provisions of Cr.P.C., the court can still lay down its own procedure while dealing with the applications under sub-section (1) of Section 12 or while considering the grant of interim or ex parte ad interim relief orders under sub-section (2) of Section 23. In view of the nature of the proceedings under the DV Act and the procedural flexibility provided under sub-section (2) of Section 28 in deciding the applications under Sections 12 or 23(2), it cannot be said that Court is bound to strictly abide by the provisions of Cr.P.C in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C.
Thus, the court below went wrong in holding that it has no power to strike off the defence for the reason that the procedure to be followed in the proceedings under Sections 12 and 18 to 23 is that provided under Cr.P.C."
The bench disposing off the application remarked, "Coming to the facts of the case, it has come out in evidence that the petitioner is a dependent unemployed wife. It has also come out in evidence that the respondent has the ability to maintain the petitioner. Even though interim maintenance was awarded by the trial court as early as in 2018, not a single month’s maintenance is paid so far. A specific direction of this court to deposit `2,00,000/- towards arrears of maintenance has been flouted without assigning any valid reason. In these circumstances, I have no hesitation to hold that the failure on the part of the husband to pay interim maintenance ordered by the learned Magistrate as well as this court is wilful and contumacious. Thus, the court below ought to have allowed the prayer for striking off the defence. However, considering the entire facts and circumstances of the case, before striking off the defence, I am of the view that a last opportunity can be given to the respondent to comply with the order of this court."
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