The main legal point established in the judgment is that the power to strike off the defence in a proceeding under Section 125 of the Code of Criminal Procedure should be exercised as a last resort, with due care and caution, especially if the default is wilful and contumacious.

ORDER :

The path of execution is not an easy-going highway; it does not provide short-cuts to the destination, observed this Court in Muraleedharan v. Jincy, 2018(4) KHC 639 relying on the decision of the Calcutta High Court in Anita Karmokar v. Birendra Chandra Karmokar, AIR 1962 Cal.88.

2. Does the Family Court have the power to strike off the pleadings in a proceeding under Section 125 of the Code of Criminal Procedure, 1973(for short, ‘Code’) on the failure to pay interim maintenance? is the question that emanates for consideration in this revision petition.

3. The respondents, the wife and child of the revision petitioner, had filed M.C.No.142/2021 before the Family Court, Mavelikara, against the revision petitioner for an order of maintenance. The miscellaneous petition filed by the respondents’ for interim maintenance was allowed by the Family Court, ordering the revision petitioner to pay the respondents’ Rs.10,000/-per month. Subsequently, on the finding that the revision petitioner had failed to pay the interim maintenance, his defence in the proceeding was struck off, and the maintenance application was allowed by confirming the interim order.

4. The revision petitioner has contended that this Court in Sakeer Hussain T.P. v. Naseera and Ors., 2016 (5) KHC 167 and Hari B. v. Harsha S. & Anr., 2021 KHC OnLine 60 has emphatically held that the defence of a respondent cannot be struck off on the failure to pay interim maintenance, as there is no enabling provision in the Code permitting such a course. Chapter IX of the Code lays down the procedure for executing an order of interim maintenance. The impugned order is improper and illegal. Hence, the revision petition.

5. Heard; Smt. Kala G. Nambiar, the learned counsel appearing for the revision petitioner and Sri. V. Visal Ajayan, the learned counsel appearing for the respondents.

6. The learned counsel appearing for the revision petitioner reiterated the contentions in the memorandum. She argued that Chapter IX of the Code is a self-contained Code. The remedy of the respondents was to file an application under Section 128 to execute the order and not a petition to strike off the defence. The Family Court ought not to have hastily struck off the valuable defence of the revision petitioner. The order is perverse and is liable to be set aside.

7. The learned counsel for the respondents defended the impugned order and submitted that the Family Court was justified in striking off the defence of the revision petitioner on his wilful failure to pay the interim maintenance to the respondents. He relied on the judgments of the Hon'ble Supreme Court in Kaushalya v. Mukesh Jain, 2020 KHC 6766 and the Division Benches of this Court in Mahesh v. Roopa, 2017 KHC 598 and Muraleedharan (supra). He urged that the revision petition be dismissed.

8. The materials on record reveal that the respondents’ application for interim maintenance was allowed, and the revision petitioner had failed to pay the ordered amount. Consequentially, the Family Court struck off the defence of the revision petitioner in the proceeding and allowed the application by the impugned order.

9. Section 125 (1) of the Code reads as follows:

“Section 125 – Order for maintenance of wives, children and parents.-(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees