Interim Maintenance; Sakeer Hussain T.P. Vs. Naseera [Kerala High Court, 09-09-2016]

Criminal Procedure Code, 1973 – Section 125 – Interim Maintenance – Non payment of – Struck off the defence of the husband – Held, there is effective remedy available for enforcement of interim maintenance. Hence, in a proceeding under Section 125 Cr.P.C., which is governed by the provision of Criminal Procedure Code, power to strike off defence does not exist, either by specific statutory provision or by necessary implication. It cannot be assumed to exist as an inherent or implied power also. Hence, the Family Court, in exercise of the power under Section 125 of the Code of Criminal Procedure, cannot exercise a jurisdiction to strike off the defence which is not contemplated under the statute. The decision of the Family Court to strike off the defence and thereafter to pass an order of maintenance is not legally sustainable and is liable to be set aside.

# Interim Maintenance


IN THE HIGH COURT OF KERALA AT ERNAKULAM

SUNIL THOMAS, J.

R.P(F.C).No.177 of 2016

Dated this the 9th day of September, 2016

MC 33/2014 of FAMILY COURT,KOZHIKODE

PETITIONER/RESPONDENT

SAKEER HUSSAIN T.P, KOZHIKODE.

BY ADV. SRI.K.A.SALIL NARAYANAN

RESPONDENT(S)/PETITIONERS

NASEERA, KOZHIKODE AND OTHERS

BY ADV. SRI.P.C.SASIDHARAN

O R D E R

The revision petitioner, who is the respondent/husband in M.C.No.33/2014 of the Family Court, Kozhikode in a proceeding under Section 125 of the Cr.P.C. challenges the order granting maintenance to his wife and three children.

2. The wife laid an application under Section 125 of the Cr.P.C. seeking maintenance. The respondent appeared and filed an objection contesting the claim made by the wife and children. It was specifically contended that due to loss of eye sight, he was unable to maintain himself. Pending the proceedings, the Family Court ordered interim maintenance to the three children. On 25/11/2014, noting that the interim order of maintenance has not been complied with, the court below by Annexure-A1 order struck off the defence of the husband. The case was posted for hearing ex parte, since there was no representation for the husband. Later, applications for review and setting aside the ex parte order were filed, which were dismissed by separate orders. Thereafter, the court below, by the impugned order directed the husband to pay maintenance to the wife and children. This is assailed in this proceedings.

3. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

4. The main ground of attack of the learned counsel for the husband was that the Family Court had no power to strike off the defence of the respondents on the reasoning that the order for payment of interim maintenance was not complied with. It was contended that the Family court committed a grave error in striking off the defence and declaring the respondent ex parte. The family court was not vested with a power to strike off the defence. According to the learned counsel, the proper course open to the Magistrate for breach of an order of maintenance was to issue a warrant under Section 125 (3), for levying the amount due.

5. Learned counsel relied on the decision reported in

# Swaminathan v. Priya, 2014 Legal Eagle Ker. 543

to buttress the above argument. That was the case wherein the Family Court, while adjudicating the application under section 125 Cr.P.C. had struck off the defence, which was challenged before this Court. It was contended that the Family Court had no power to strike off the defence for non payment of interim maintenance. Relying on the decisions in

Vinod v. Chhaya (2003 DMC 580)

and

# Gurvinder Singh v. Murti, 1991 Cri. L.J. 2353

the learned Single Judge held that the Family Court, in exercise of its power under 125 Cr.P.C., had no power to strike off the defence. In Vinod’s case (supra) the Nagpur Bench of Bombay High Court held that Family Court cannot strike out defence of husband for failure to pay interim maintenance. The Court rested its reasoning on a premise that civil procedure had no application to a proceeding under section 125 Cr.P.C. and that proceedings would be governed by Code of Criminal Procedure 1973. Same view was held by the Punjab and Haryana High Court also in Gurvinder Singh’s case (supra). It was held that the Magistrate exercising the power under section 125 Cr.P.C. did not have the power to strike off the defence for failure to pay interim maintenance since order VI Rule 16 C.P.C. or, inherent power of a civil court were not applicable to a proceeding under section 125 of the Code of criminal Procedure. It was further held that it could be levied just as a final order for maintenance, by resorting to the procedure under sections 125(3) and section 421 Cr.P.C. for levying or recovery of fine, or by passing an order of sentence against defaulter. The respondent against whom an order for interim maintenance has been passed cannot be penalised with an order of striking off his defence.

6. In

# Davis v. Thomas and Another, 2007 (4) KHC 363

this Court, while considering the question of striking off defence in a proceeding under Section 125 Cr.P.C. pending before the Magistrate Court had held that, after amendment of Cr.P.C. with effect from 24.09.2001, interim maintenance could be granted only on the basis of a written application. The court held that, in that case, there was no application for granting interim maintenance and the order of the court below to grant interim maintenance on the basis of the oral submission was invalid and consequently order of striking off the defence was bad.

7. Per contra, the learned counsel for the wife contended that the court below was perfectly justified and was well within its jurisdiction to strike off the defence in an appropriate case, to meet the ends of justice. The learned counsel placed reliance on the decision of the Division Bench of this Court in

# Jayasree v. Vivekanandan, 2012 (2) KLT 249

wherein the power of the Family Court to strike off the defence was considered. That was a case in which the husband had sought custody of the child. Direction was issued by the Family Court to handover the custody of the child to the husband on a prescribed day. The wife failed to produce the child. Thereupon, an application was filed under the Guardian and Wards Act invoking order VI Rule 16 of the Code of Civil Procedure to strike off the defence of the wife for violating the order of the Court. The Court allowed the application and struck off the defence. This was the subject matter of challenge before the Division Bench.

8. The Court considered elaborately the various provisions relating to striking off the defence. The court referred to the decision of the Supreme Court in

# Abdul Razak v. Mangesh Rajaram Wagle, (2010) 2 SCC 432

wherein, analysing the scope of order VI Rule 16 CPC, the court held that the above provision empowered the Courts to strike out the pleadings at any stage of proceeding, in any of the three eventualities contemplated therein. Relying on the above decision, the Division Bench concluded that Order VI Rule 16 C.P.C. is applicable only to the specific situations contemplated in the provision, touching upon the nature of the pleadings.

9. The Division Bench, thereafter, proceeded to consider whether outside Order VI Rule 16 CPC, the Court has inherent power to strike off the defence. The Division Bench held that a Court is meant to do justice, no doubt, within the confines of law and principles, which are settled from time to time. It was held that if the Court is to be an effective adjudicator of disputes, it must inevitably be clothed with necessary power to deal with situations which arises so that the people will continue to repose faith in the system and resort to lawful means which are provided by the Courts. Hence, for the purpose of preserving its power and effectiveness, the Courts have inherent power to strike off defence, even outside Order VI Rule 16 CPC.

10. To substantiate the above conclusion, the Division Bench also referred to the decision of a learned Single Judge of this court in

# Parukutty Amma v. Thankamma Amma, 1998 (1) KLT 883

wherein it was held that while deciding cases, for meeting the ends of justice, the court can exercise the power to strike off the defence. The Court had held that striking off the defence was well within the jurisdiction of the Court in exercise of its inherent powers under Section 151 CPC, although it was not the only order which the Court could pass under the circumstances of the case. The same view was expressed by another learned Single Judge of this Court earlier in

# Mangalam v. Velayudhan Asari, 1992 (2) KLT 553

In that case, the defence of the husband was struck off for non payment of the interim maintenance ordered under Section 24 of the Hindu Marriage Act. In that case Court held that the Courts are clothed with inherent power to pass such orders as are necessary to meet the ends of justice or to prevent the abuse of the process of Court. Section 151 of the Code of Civil Procedure saved the inherent powers of the court and, in exercise of that power, the Courts can strike off the defence in deserving cases for meeting the ends of justice. The Court had further held that the court below had inherent power under Section 151 of the Code of Civil Procedure to give effect to its order. Referring to the above and various other decisions, the Division Bench concluded that the power of the Courts to strike off the defence is not confined to Order VI Rule 16 CPC, but can also be invoked in appropriate cases, even under Section 151 C.P.C. 11. However, the Division Bench decision related to a proceeding under the Guardian and Wards Act. The jurisdiction under the said Act is vested in a District Court as defined under the Code of Civil Procedure. Various provisions of the Act, specifically sections 9, 10, 11 and 48, eminently show that the procedure for adjudication under the Act is governed by the Code of Civil Procedure. The decisions that were relied on by the Division Bench were under the Hindu Marriage Act and under the Guardian and Wards Act. Adjudication of disputes under Hindu Marriage Act is vested in a civil Court. However in the case at hand, the specific provision dealt with was under Section 125 Cr.P.C. Though the Forum was the Family Court, the exercise of the powers were those which were originally exercised by the Magistrate under Section 125 Cr.P.C. By the enactment of Family Courts Act, 1984, only Forum has shifted , but the substantive power has to be traced to Section 125 Cr.P.C. The nature of power exercised by Family Courts while dealing with section 125 Cr.P.C was settled by Full Bench of this Court in

# Satyabhama v. Ramachandran, (1997) 2 KLT 503

It was held that Family Court act as a criminal Court and not as a Civil Court while disposing of application under section 125 Cr.P.C and that proceedings under Chapter IX of the Cr.P.C are criminal proceedings. This was reiterated by another Full Bench in

# Pater v. Sara, 2006 (4) KLT 219 (FB)

Though it may be said that proceedings for maintenance are in the nature of civil proceedings, the criminal process is applied for the summary and speedy disposal of cases. The subtle distinction of exercise of procedural Laws applicable to the Family Court while adjudication of issues covered by different Statutes is evident from section 10 of Family Courts Act 1984.Section 10 of the Act provides as follows:

# 10. Procedure generally

(1) subject to the other provisions of this Act and the Rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings (other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court.

(2) Subject to the other provisions of this Act and the Rules, the provisions of the Code of Criminal Procedure,1973(2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.”

Neither expressly nor by necessary implication, Code of Criminal Procedure confer a power identical to that of striking off defence on criminal courts. Further, the Magistrate Courts are not conferred with an inherent power similar to that of Section 151 CPC. Hence, they cannot exercise inherent power also. Consequently, the Division Bench decision in Jayasree’s case (supra) has no application to the facts of the present case.

12. The learned counsel for the wife further contended that that Courts of Law have an implied power to enforce its own decisions and to advance the cause of justice. The counsel relied on the decision of the Hon’ble Supreme Court in

# Savitri v. Govind Singh Rawat, (1985) 4 SCC 337

to contend that Courts have implied power to pass such orders as are necessary to meet ends of justice. In the above decision, Supreme Court while dealing with Section 125 Cr.P.C., as it then existed, held that the court can exercise powers to meet the very object of the legislation. It was held that in the absence of any express provision under Chapter IX Cr.P.C., for awarding interim maintenance an implied power can be assumed on the Magistrate to grant interim maintenance, even though the statute did not specifically provide that. The Court held as follows:

“Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim ‘ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that the recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may not exist.”

This view was reiterated in

# Shail Kumari Devi v. Krishnan Bhagwan Pathak, (2008) 3 KLT 576 SC

The learned counsel contended that it should be deemed that Courts and Tribunals are conferred with all such implied powers, unless those powers are specifically barred.

13. It is pertinent to note that in the above cases, the Hon’ble Supreme Court has considered the question of interim maintenance which was not provided under the statute at that time. Referring to the object of the statute, it was held that the object of the statute was to compel a man to perform the moral obligation which he owed to Society in respect of his wife and children to ensure that they are not driven to a life of destitute. Section 125 confers a summary procedure for maintenance. The Court held that courts must have an implied power to give effect to all its orders. However, the court concluded that such a power may not be admissible in all cases. In the case dealt with by the Supreme Court, it was held that the very object of the statutory provision was to provide maintenance to deserted wife and children. However, the Supreme Court found that normally the procedure takes long time for final determination. During the above period, the wife and children cannot be forced to lead a life of penury. Hence, the court held that the courts have implied power to grant interim maintenance which was a power embedded in Section 125 Cr.P.C. and will advance the object of the statue. Evidently, an implied power can be assumed only as an ancillary or derivate power or a concomitant power derived from a specific authority conferred by Statue. Implied power should always be a derivate power arising from an existing provision and should be in accordance with the purpose and object of the statutory. The power cannot be extended to a case which is a power independent by itself and not visualized or contemplated by the statute. Striking off defence is a very exceptional jurisdiction which takes away a very valuable right of party and which result in very serious consequences on the litigant. Such an extreme step is not contemplated by the statute. Time and again courts have held that striking of pleadings has very serious impact on the rights of party.{See

# Abdul Razak v. Mangesh Rajaram Wagle, (2010) 2 SCC 432

and Jayasree‘s case (Supra}. Further there is effective remedy available for enforcement of interim maintenance. Hence, in a proceeding under Section 125 Cr.P.C., which is governed by the provision of Criminal Procedure Code, power to strike off defence does not exist, either by specific statutory provision or by necessary implication. It cannot be assumed to exist as an inherent or implied power also. Hence, the Family Court, in exercise of the power under Section 125 of the Code of Criminal Procedure, cannot exercise a jurisdiction to strike off the defence which is not contemplated under the statute. Consequently, the decision in Savitri‘s case (cited supra) is only to be held as the correct law. However, that will not preclude courts from exercising such implied power which are essential and concomitant with the main powers and object of statute. In the light of the above discussion, the decision of the Family Court to strike off the defence and thereafter to pass an order of maintenance is not legally sustainable and is liable to be set aside.

In the result, the petition is allowed, impugned order is set aside and the matter is remanded to the court below for fresh consideration on merits. The court below shall try to expedite the proceedings. However, as an interim measure, the petitioner/husband herein shall pay and continue to pay at the rate of Rs.2000/- (Rupees Two Thousand only) per month to the wife and Rs.1000/- (Rupees One thousand only) per month to the children, till final orders are passed by the court below. The parties shall appear before the court below on 06.10.2016. Sd/- SUNIL THOMAS Judge dpk /true copy/ PS to Judge.

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