Striking Out Defence for Non-Compliance with Maintenance Orders: High Court's Power to Mould Relief under CPC Section 151 and Order XXXIX Rule 11 (Bombay Amendment).

sketch of the Bombay High Court
Case
SUPRIYA SUNIL ZAMBRE v. SUNIL UTTAM ZAMBRE (Bombay High Court, 25-03-2025)
Law
Code of Civil Procedure, Hindu Marriage Act.
  • Facts: The Petitioner (wife) filed an application (Exhibit-79) in a Hindu Marriage Petition seeking to strike out the defence of the Respondent (husband) for non-payment of maintenance arrears. The trial court had previously ordered the husband to pay Rs.1,500 per month as maintenance pendente lite and Rs.1,000 as expenses. The wife contended that the total maintenance granted was Rs.2,500 per month, leading to arrears.
  • Procedural Posture: The Petitioner challenged the order of the 6th Joint Civil Judge Senior Division, Sangli, which rejected her application to strike out the Respondent's defence, by filing a Writ Petition under Article 227 of the Constitution of India in the High Court.
  • Issue: Did the trial court err in rejecting the Petitioner's application to strike out the Respondent's defence in the Hindu Marriage Petition for non-compliance with the maintenance order, and can the High Court interfere with the trial court's order under Article 227 of the Constitution?
  • Holding: Yes, the High Court quashed the trial court's order and allowed the Petitioner's application, directing that the Hindu Marriage Petition would stand dismissed if the Respondent failed to deposit the arrears of Rs.25,000 by June 30, 2025.
  • Reasoning: The High Court reasoned that the trial court's order was passed without considering the aspect of arrears. While the prayer in the application was to strike out the defence, the court has the power to "mould the relief" to do substantial justice under Section 151 of the Code of Civil Procedure. The High Court noted that the Hindu Marriage Petition sought divorce under Section 13(1)(i-a)(b) of the Hindu Marriage Act, 1955, and if the Respondent violated the maintenance order, the petition could be dismissed under Order XXXIX Rule 11 (Bombay Amendment) of the CPC. The court held that there was no impediment in granting relief as the order granting maintenance was admittedly breached.