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 gr