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