Case Note & Summary
The appellant wife filed Family Court Appeal No.20 of 2013 challenging the order dated 8th November 2012 passed by the Family Court at Mumbai. By that order, the Family Court dismissed the wife's Petition No.A1464 of 2008 and struck out her defence in the husband's Petition No.D60 of 2009, exercising powers under Order XXXIX Rule 11 of the Code of Civil Procedure, 1908. The dispute arose from alleged non-compliance by the wife with access orders regarding the minor child. The wife contended that she had complied with the access orders and produced a video film of the incident on 8th September 2012, which was viewed by a marriage counsellor who submitted a report dated 1st October 2012. The High Court observed that the drastic power under Order XXXIX Rule 11 should be used only in cases of willful and contumacious disobedience. Since there was a dispute of facts and the wife had produced evidence of compliance, the impugned order was set aside. The Family Court Appeal was allowed, and the matters were remanded to the Family Court for fresh consideration. The connected civil applications were disposed of accordingly.
Headnote
A) Civil Procedure - Order XXXIX Rule 11 CPC - Dismissal of Petition and Striking Out of Defence - The Family Court dismissed the wife's petition and struck out her defence in the husband's petition for non-compliance with access orders - The High Court held that the drastic power under Order XXXIX Rule 11 should be exercised only in cases of willful and contumacious disobedience - The wife had provided video evidence and a marriage counsellor's report indicating compliance - The impugned order was set aside and the matters remanded for fresh consideration (Paras 2-5).
Issue of Consideration
Whether the Family Court was justified in dismissing the wife's petition and striking out her defence under Order XXXIX Rule 11 CPC for alleged non-compliance with access orders.
Final Decision
The Family Court Appeal is allowed. The impugned order dated 8th November 2012 is set aside. The matters are remanded to the Family Court for fresh consideration. All connected civil applications are disposed of.
Law Points
- Order XXXIX Rule 11 CPC
- striking out defence
- dismissal of petition
- non-compliance with interim orders
- access to minor child
- video evidence
- marriage counsellor report
Case Details
2014 LawText (BOM) (12) 82
Family Court Appeal No.20 of 2013 with Civil Application No.40 of 2013, Civil Application No.214 of 2013, Civil Application No.177 of 2013, Civil Application No.78 of 2014
Mr. Mohan A. Dharmaraj for the Appellant (wife), Mr. K.N. Krishnamurthy Respondent (husband) in person
Mrs. Kavita Krishnamurthy
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Nature of Litigation
Family Court Appeal against order dismissing wife's petition and striking out her defence under Order XXXIX Rule 11 CPC for alleged non-compliance with access orders.
Remedy Sought
The appellant wife sought setting aside of the order dated 8th November 2012 passed by the Family Court.
Filing Reason
The wife's petition was dismissed and her defence struck out for alleged non-compliance with access orders regarding the minor child.
Previous Decisions
The Family Court had passed orders on 13th March 2012 and 27th August 2012 regarding access, and on 14th September 2012 directed the marriage counsellor to view a video film and submit a report.
Issues
Whether the Family Court was justified in dismissing the wife's petition and striking out her defence under Order XXXIX Rule 11 CPC for alleged non-compliance with access orders.
Submissions/Arguments
The appellant wife argued that she had complied with the access orders and produced a video film and a marriage counsellor's report supporting her compliance.
The respondent husband contended that the wife had not complied with the access orders.
Ratio Decidendi
The power under Order XXXIX Rule 11 CPC to dismiss a petition or strike out defence is drastic and should be exercised only in cases of willful and contumacious disobedience. Where there is a dispute of facts and evidence of compliance, the court should not invoke such power without proper inquiry.
Judgment Excerpts
The learned Judge modified the earlier order regarding grant of access to the minor child.
There is a specific observation that if the said access order is not complied with, the matter will be taken up for orders under Rule 11 of Order XXXIX of the said Code.
The report dated 1st October, 2012 shows that the allegation of non-compliance was disputed.
Procedural History
The wife filed Petition No.A1464 of 2008 in the Family Court at Mumbai. The husband filed Petition No.D60 of 2009. On 8th November 2012, the Family Court dismissed the wife's petition and struck out her defence under Order XXXIX Rule 11 CPC. The wife appealed to the High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order XXXIX Rule 11
