Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More

Sathya Shanmugavlu   17 April 2023

Sec 151 r/w sec 21 of the cpc, strike off defence maintainable?

Dear Experts,

My Wife filed for strike off defence in her divorce petition owing to non compliance of interim maintenance order ( Even though I'm regularly taking care of my daughter education and other expenses)

Is this petition maintainable under above section in family court and if so what implications will it have on her divorce (will it be automatically granted without any evidence just by striking of my defence)

Thanks for all your support sir.



Learning

 15 Replies

P. Venu (Advocate)     17 April 2023

How Section 21 CPC is relevant?

Legal_Help (Manager)     17 April 2023

Dear Sir , They have cited the example of Mohinder Verma vs Sapna (29.09.2014) attach as citation in their petition Sir.


Attached File : 424824 20230417175357 mohinder verma vs sapna on 29 september 2014 1 .pdf downloaded: 78 times

P. Venu (Advocate)     17 April 2023

It is not Section 21 of the CPC, but Order XXI of the CPC.

The Court can strike of your defence if there has been willful disobedience on your part in complying with directions under Section 24 of the HMA.

Dr J C Vashista (Advocate)     18 April 2023

Section 21 CPC provides only with objections as to place of suing.

 

T. Kalaiselvan, Advocate (Advocate)     18 April 2023

Rule 11 of Order 39,  provides for procedure on parties defying orders of the Court and/or committing any breach of the Undertaking to the Court

Order 21 of the Code of Civil Procedure deals with the solemn act of execution of the decrees passed by the Courts from grassroots to the top. Ultimately, after the judgment attains finality or where there is no stay in the execution by any Appellate or Revisional Court, it is the Court of original jurisdiction which performs this sacred act of implementation of the execution. It has been often seen that in view of less number of units prescribed for execution of the decree, the executions are not give that much time and importance as required and desired. It is only the execution, which reveals and signifies the importance of the decrees to be passed and the pedestal of the Court and sanctity of the document. As such, the decrees are required to be executed with force, so that the Decree Holder having a document containing declaration of his rights may not feel cheated or helpless having earned no fruits of the lis got settled by him from the Court even after spending decades altogether.

Thus if you had disobeyed the court order and failed to pay the maintenance order passed under section 24 of HMA, then the court is at liberty to invoke the above mentioned provision of law to strike off the defence until the payment is made good. 

Legal_Help (Manager)     18 April 2023

Thanks Experts. What if I have been already taking care of all expenses and produce those bills (as the IA maintenance order was concealed from me till couple of months back)

Furthermore my wife main OP divorce petition was last year dismissed for default and restored without any express order to revive the IA order.

Is the IA maintenance order still have force to cause an extreme step to strike off my defense.

(Does the HMA act have jurisdictions to enforce it)

Sathya Shanmugavlu   19 April 2023

Also, when once my defence is struck off from her divorce proceedings, what would be the impact to her divorce proceedings.

Will it automatically be decreed in her favor without her showing any evidence to the original cause of divorce (no evidence, no arguments, no cross examination) just because my defense was struck off.

P. Venu (Advocate)     19 April 2023

Is Legal _Help and Sathya shanmugavelu one and the same querist?

Anyhow, the querist, admittedly, well aware of the legal elements of 'striking out defence' and the experts have suggested that the Court could invoke the same in the light of the information of provided. it is beyond the scope of this platform to state any further.

N.K.Assumi (Advocate)     21 April 2023

The appropriate provisions of law to the fact in issue  is to read Section 47 read with Order 21 CPC and not invoking the inherent power of the court. 

P. Venu (Advocate)     21 April 2023

It has been authoritatively held that the Court has inherent powers under Section 151 of the CPC to strike out defence in cases of wilful abuse of the pocess of the court as held in C.S. Mangalam vs Velayudhan Asari -

5. A sum of Rs. 5,200/-, outstanding as balance due to the petitioner, should be the maintenance due for a period of years. According to the court below, the revision petitioner can initiate proceedings in execution. As observed by Banerjee, J. in Anita Karmokar v. Birendra Chandra Karmokar AIR 1962 Cal 88, at page 92, "the path of execution is not an easy going highway and provides no short-cuts to the destination .......... Difficutlies of a litigant in India begin when he has obtained a decree. To relegate one to that difficult and risky pathway, even for realisation of the litigation expenses.........

may result in the suit itself being heard out before the expenses may be realised by process of execution. Therefore, to hold that the levying of execution is the only remedy for enforcement of an order made under Section24 of the Hindu Marriage Act may result in making such order wholly nugatory and ineffective". The above reasoning applies with equal force here. Even in the absence of a provision in the Hindu Marriage Act for striking off the defence in case one of the parties to the proceedings wilfully refuses to comply with the order of the court, 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.

6. Varghese Kalliath, J., in Parukutty Amma v. Thankamma Amma 1988 (1) KLT 883, at pages 884 and 885, held that Section151 of the Civil P.C. 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, Kalliath, J. observed, at page 885, thus:

"......... If the court feels that to meet the ends of justice such a course is necessary, namely, to strike off the defence, I am of the view that such a power in hers with the court from its very constitution as a court and that power is absolutely necessary in certain circumstances to meet the ends of justice........ In cases where a party who deliberaely disobeys the orders of the court has to incur the liability of his defence struck off by the court. This is essential because if this power is not acceded to the court, it will create great difficulty for the court to control the proceedings of the court and to obtain the cooperation of the parties." I concur with the said view. In Narayana Nadar v. Jayakodi Ammal 1990 (1) DMC 596, Ratnam, J. of the Madras High Court stated the law thus:

"That the direction for payment of interim alimony and litigation expenses to a financially weaker spouse during the pendency of the matrimonial proceedings is only to erase the financial inequality and it is common knowledge that the path of execution is not smooth. In the context of the prevailing circumstances in our society, the payment of interim alimony and litigation expenses, pendente lite to a spouse, who is financially weaker than the other, with a view to enable him or her to conduct the proceedings in a matrimonial cause and secure speedy justice, should be regarded as a sine qua non of justice and the argument that resort to execution proceedings can be had against the defaulting spouse or that other proceedings can be taken, cannot a be countenanced, especially when enforcement of such orders otherwise than by execution, is neither prohibited nor excluded by Section28A of the Act. Thus, on a careful consideration of the facts and the circumstances and also the relevant statuatory provisions, the court below cannot be stated to have committed any error in striking out the defence of the petitioner herein."

Again, in Atreyapurapu Venkata Subba Rao v. Atreyapurapu Venkata Shyamala 1990 (II) DMC 486, Amareswari, J. of the Andhra Pradesh High Court stated the law thus:

"I am of the view that to secure the ends of justice and to prevent the abuse of the court's process, striking out of the defence can be resorted to under Section 151, C.P.C. The intention of the petitioner is to drive the respondent to take recourse to execution under Section28 and to stay the main proceedings. If execution has to be resorted to staying the main proceedings, the petitioner would be achieving the object of protracting the proceedings. That would also be encouraging the parties to flout the orders of the court and to dealy the proceedings which are expected to be expeditious. In such circumstances, striking out the defence of such a defaulting party would be a proper order......".

Substantially, the view expressed by the Madras and Andhra Pradesh High Courts was expressed by Bhopinder Singh Dhillon, J. of the Punjab and Haryana High Court, in Shri Ram Swaroop v. Janak AIR 1973 P & H 40. I concur with the aforesaid decisions of the Madras, Andhra Pradesh and Punjab and Haryana High Courts.

7. In the light of the above decisions, I hold that the order passed by the learned Subordinate Judge in I.A. No. 3603 of 1991 dated 7-11-1991 is clearly illegal and perverse. The court below had inherent jurisdiction under Section 151 of the Civil P.C. to give effect to its order. It had inherent jurisdiction to prevent the abuse of the process of the court. In giving effect to its order, the court below would have been justified to strike off the defence, even if there is no such provision in the Hindu Marriage Act. Instead of exercising the jurisdiction so vested in the court, the lower court has thrown its hands in despair and has offered a gratuitous legal opinion to the revision petitioner to file an execution petition, which, as stated by Banerjee, J. in Anita Karmokar's case AIR 1962 Cal 88, is not an easy going highway, and is beset with all imponderables and practical difficulties.

8. The court below has failed to exercise the jurisdiction vested in it under law. I, therefore, set aside the order passed by the court below in I. A. No. 3603 of 1991 in O.P. (H.M.A.) No. 379 of 1987 date 7-11-1991 and allow this revision. This is a fit case in which, for deliberate non-payment of Rs. 5,200/ -due towards the maintenance and litigation expenses to the revision petitioner, the defence of the respondent (husband) should be struck off. I hereby direct that the defence of the repondent be struck off accordingly."

N.K.Assumi (Advocate)     23 April 2023

P.Venu Sir, the query is "My Wife filed for strike off defence in her divorce petition owing to non compliance of interim maintenance order ( Even though I'm regularly taking care of my daughter education and other expenses) Is this petition maintainable under above section in family court and if so what implications will it have on her divorce (will it be automatically granted without any evidence just by striking of my defence)" , so the question is whether Section 47 read with Order 21 of the CPC provides for remedy in such a case. If there is no remedy under Section 47 and Order 21, Section 151 will be applicable, if there is a remedy 151 will not be pplicable.

 

P. Venu (Advocate)     23 April 2023

In my considered opinion, a careful reading of the above judgment suggests the filing of execution petition "is not an easy going highway, and is beset with all imponderables and practical difficulties." and as such, in cases of wilful abuse of the process of the court, striking out defence alone is the viable option.

 

Legal_Help (Manager)     23 April 2023

Just to summarize:

Any married woman in India can file for divorce under any sections, absolutely without ANY evidence.

File for Interim maintenance pendente lite till disposal of the main case.

Drag the case for 5 to 10 years and let the maintenance accumulate.

In the event husband not able to maintenance arrears for whatever reason (even though he is taking care of expenses), file for strike off defence, just showing interim maintenance order.

Husband defence struck off even if it is not Willful and contumacious.

Wife gets divorced, not appealable as order provided under Section 151 making it not appealable in HC.

Wife walks aways with divorce with permanent alimony and husband executed for no fault of his.

N.K.Assumi (Advocate)     23 April 2023

All decrees and orders passed under HMA are enforced as the decrees and orders of the court in exercise of its original civil jurisdiction, and there are clear specefic povision to deal with such matters, and there is no void in law in such matters.


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register