Case Note & Summary
The petitioner, Dr. Deepak Kumar M.M., and the respondent, Dr. Poornima S., were married on 15 December 2010 in Bangalore. The respondent filed a divorce petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955, in M.C. No. 1018/2012 before the VI Additional Principal Judge, Family Court, Bangalore. The petitioner filed his statement of objections on 30 November 2012. The respondent also filed an application under Section 24 of the Act for interim maintenance, which was opposed by the petitioner on the ground that the respondent was gainfully employed. On 30 April 2014, the Family Court passed an order striking out the defence of the petitioner on the ground that he was absent on the date fixed for cross-examination of the respondent's witnesses and had not complied with an earlier order for payment of interim maintenance. The petitioner challenged this order by filing a writ petition under Articles 226 and 227 of the Constitution of India. The High Court held that the Family Court's order was in gross violation of principles of natural justice as the petitioner was not given any opportunity to cross-examine the witnesses or to show cause before his defence was struck out. The court observed that striking out defence is a drastic step and should be resorted to only in extreme cases after affording a reasonable opportunity. The impugned order was quashed, and the Family Court was directed to restore the defence and proceed with the case in accordance with law, granting the petitioner an opportunity to cross-examine the witnesses. The High Court also directed the Family Court to dispose of the interim maintenance application expeditiously.
Headnote
A) Family Law - Divorce - Striking out defence - Section 13(1)(ia) Hindu Marriage Act, 1955 - Natural Justice - The Family Court struck out the husband's defence for non-appearance on a date fixed for cross-examination of wife's witnesses, without granting any further opportunity. The High Court held that striking out defence is a drastic step and should not be resorted to without affording the party a reasonable opportunity to be heard. The order was set aside as it violated principles of natural justice. (Paras 1-6) B) Family Law - Interim Maintenance - Section 24 Hindu Marriage Act, 1955 - Non-compliance - The wife had filed an application for interim maintenance under Section 24, which was pending. The husband had not complied with an earlier order for payment of interim maintenance. However, the High Court noted that non-compliance with maintenance order cannot be a ground to strike out defence without hearing. (Paras 2-4) C) Civil Procedure - Striking out defence - Order VIII Rule 10 CPC - Applicability - The Family Court's order striking out defence was not based on any specific provision but was akin to a penalty for non-appearance. The High Court observed that such orders are not to be passed mechanically and must be preceded by an opportunity to show cause. (Paras 5-6)
Issue of Consideration
Whether the Family Court was justified in striking out the defence of the husband without granting him an opportunity to cross-examine the wife's witnesses, and whether such order violated principles of natural justice.
Final Decision
The High Court allowed the writ petition, quashed the order dated 30.04.2014 passed by the VI Addl. Prl. Judge, Family Court, Bangalore in M.C.No.1018/2012, and directed the Family Court to restore the defence of the petitioner and proceed with the case in accordance with law, granting the petitioner an opportunity to cross-examine the witnesses. The Family Court was also directed to dispose of the interim maintenance application expeditiously.
Law Points
- Natural justice
- right to be heard
- striking out defence
- opportunity to cross-examine
- Section 13(1)(ia) Hindu Marriage Act
- 1955
- Section 24 Hindu Marriage Act
- Order VIII Rule 10 CPC
- Order XVII Rule 3 CPC
