Striking off the defense in maintenance proceedings should be a last resort, requiring prior opportunity for compliance and consideration of alternative enforcement measures.

ORDER :

C.S.Dias, J.

The revision petition is filed assailing the order dated 17.10.2023 in M.C No.27/2021 of the Family Court, Mavelikkara, striking off the defence of the revision petitioner and posting the application for evidence. The revision petitioner is the respondent and the respondents 1 to 3 are the petitioners before the Family Court. The fourth respondent/State is a formal party.

Brief facts

2. The respondents 1 to 3 have filed the application, under Sec.125(1) of the Code of Criminal Procedure (in short, "Code"), seeking monthly maintenance allowance @ Rs.10,000/- each from the revision petitioner. It is their case that the revision petitioner is the husband of the first respondent and father of respondents 2 and 3. The revision petitioner has wilfully neglected to maintain them. Therefore, they are entitled to maintenance.

3. The revision petitioner had filed a written objection denying the allegations in the application.

4. The parties also filed their affidavits of disclosure of assets and liabilities as laid down in the decision of the Hon'ble Supreme Court in Rajnesh v. Neha and Anr. [2020(6) KHC 1].

5. The respondents 1 to 3 had also filed CMP No.37/2021 for an order of interim maintenance allowance. The application was allowed on 20.01.2023, by a non-speaking order, directing the revision petitioner to pay monthly maintenance allowance to the first respondent @ Rs.7,500/- and the respondents 2 and 3 @ Rs.5,000/- each from 29.01.2021.

6. Subsequently, the Family Court, by the impugned non-speaking order, struck off the defence of the revision petitioner on the ground that he has failed to pay interim maintenance allowance to the respondents 1 to 3. The impugned order has caused severe prejudice to the revision petitioner, who has been denied his valuable right to contest the proceedings. Hence, the revision petition.

7. Heard; Sri.T.Madhu, the learned counsel appearing for the revision petitioner, Sri.Aibel Mathew, the learned counsel appearing for the respondents 1 to 3 and the learned Public Prosecutor appearing for the fourth respondent/State.

8. The learned counsel appearing for the revision petitioner reiterated the contentions in the memorandum. He 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.

9. 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 willful failure to pay the interim maintenance allowance 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 v. Jincy [2018(4) KHC 639]. He urged that the revision petition be dismissed.

10. The materials on record reveal that the respondents' application for interim maintenance was allowed, and the revision petitioner has failed to pay the ordered amount. Consequentially, the Family Court has struck off the defence of the revision petitioner in the proceeding and is proceeding with the trial.

11. 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