Case Note & Summary
The petitioner, Evelyn Pacifico Gonsalves, challenged an order dated 26 September 2018 passed by the learned Family Court at Mumbai, which struck out her defence under Order 39 Rule 11 of the Code of Civil Procedure, 1908 (CPC) for non-payment of maintenance. The maintenance was ordered in favor of the respondent, Eleanor Evelyn Gonsalves, for their son Ethan. The petitioner had defaulted on payment of monthly maintenance of Rs. 12,500/- as per a joint pursis, leading to arrears of Rs. 6,12,500/-. The respondent had to initiate execution proceedings to recover Rs. 2 lakhs. Before the High Court, the petitioner, through her senior counsel Mr. R.S. Apte, made a statement that she would pay the entire arrears within four weeks and file an undertaking to that effect. The respondent opposed the request, citing the petitioner's history of default. The High Court, exercising its discretion, held that the order striking out defence is discretionary and can be set aside if the petitioner undertakes to pay arrears within a specified period. The court found the petitioner's request reasonable and set aside the impugned order, subject to the petitioner paying the arrears within four weeks and filing an undertaking. The court directed that if the petitioner fails to comply, the impugned order would stand restored. The petition was disposed of accordingly.
Headnote
A) Family Law - Maintenance - Striking out defence under Order 39 Rule 11 CPC - The Family Court struck out the petitioner's defence for non-payment of maintenance arrears of Rs. 6,12,500/- - The High Court held that the order striking out defence is discretionary and can be set aside if the petitioner undertakes to pay arrears within a specified period - The petitioner's statement to pay within four weeks was considered reasonable, and the impugned order was set aside subject to payment and filing of an undertaking (Paras 5-8).
Issue of Consideration
Whether the Family Court's order striking out the petitioner's defence for non-payment of maintenance should be set aside upon the petitioner's undertaking to pay arrears.
Final Decision
The impugned order dated 26 September 2018 is set aside subject to the petitioner paying the arrears of Rs. 6,12,500/- within four weeks from today and filing an undertaking in the Family Court. If the petitioner fails to comply, the impugned order shall stand restored. The petition is disposed of. Rule is made absolute in the aforesaid terms.
Law Points
- Order 39 Rule 11 CPC
- striking out defence
- maintenance arrears
- discretion of court
- conditional setting aside
