Order 1

Order Details: Order
Pdf Text: IN THE COURT OF THE JUDICIAL MAGISTRATE (FIRST CLASS)
10TH COURT, ANDHERI, MUMBAI
C.C.No. 25/DV/2018
ORDER BELOW APPLICATION DATED 07/07/2026
The petitioner has prayed for striking of defence of respondent
for non payment of interim maintenance allowance.
2. Record shows that an order of interim maintenance allowance
against respondent No.1 in the year 2021 and was directed to pay interim
maintenance allowance of Rs.20,000/- per month. Record further shows that
the order of interim maintenance passed by this Court was modified by the
Hon’ble Sessions Court and reduced to Rs. 15,000/- per month. The Hon’ble
High Court was pleased to maintain the order of the Hon’ble Sessions Court
in Criminal Application No. 211/2025. Admittedly, the respondent is in
arrears of maintenance. The arrears are claimed to the tune of
Rs.14,40,770/-. An application for arrest warrant was filed on 24/06/2024
which is replied on 26/07/2024. It also appears that an application for
striking of defence was also moved on 06/05/2024. Even distress warrant
was issued against the respondent.
3. It appears from the record that the respondent filed common
reply to the main DV petition on 14/11/2018. Certainly, striking of defence
should be the last resort undertaken for the recovery of maintenance
allowance. The reply filed by the respondent shows that he has paid Rs.
50,000/- into the Court. He has also stated that he was ailing from kidney
stone and undergone surgery at KEM Hospital. However, he has not
submitted any document to support his contentions. He also claimed that he
is working as salesman in shop and he is not making any deliberate default.
He also states that the applicant can independently pursue remedies for
recovery of maintenance.
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4. I have heard both sides at length and also gone through the
judgments cited by them. Certainly, striking of defence should be the last
resort. The petitioner has filed an evidence affidavit much earlier i.e. on
28/10/2025. The respondent is praying that his defence should not be strike
off. Considering the age of the matter and dispute between the parties,
conducting the hearing of matter on merits is very much important. The
respondent is ready to cross-examine the petitioner. I have inquired with
petitioner’s Advocate. He submits that except the petitioner no any other
witness to her case. The respondent proposes to examine 5 witnesses who are
posed as defendant in the matter. His Ld. Advocate submits that the
respondent is ready to conduct the matter on merits within a time frame so
that the hearing is not delayed in any way. In my opinion the non payment of
interim maintenance in this particular matter cannot be a ground for striking
of defence and withhold the opportunity of trial on merits. A stipulated time
frame to conduct the hearing would certainly result in disposal of matter and
both parties would get the judgment on merits. Thus, I pass following order :
ORDER
1. The respondent shall without fail complete the cross-examination of
petitioner on or before 27/08/2026 and shall tender his evidence affidavit on
or before 04/09/2026 and the petitioner shall cross-examine him within next
15 days.
2. Application is disposed of accordingly.
Sd/-
(S.G. Agrawal)
Place : Mumbai. Judicial Magistrate (F.C.)
Dated : 12/08/2026 10th Court, Andheri, Mumbai.
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