The court established that striking off the defense for non-payment of interim maintenance should be a last resort after providing opportunities for compliance.

ORDER

The revision petition is filed questioning the legality and correctness of the order in M.C. No.23/2015 of the Family Court, Thalassery, ordering the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.10000/- to the first respondent and Rs.5000/- to the second respondent from the date of order. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court.

Brief facts

2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure (‘Code’, for short), seeking monthly maintenance allowance from the revision petitioner. During the pendency of proceedings, the Family Court ordered the revision petitioner to pay interim maintenance to the respondents. However, the revision petitioner failed to pay the interim maintenance amount. Consequently, the Family Court struck off the defence of the revision petitioner and allowed the application as prayed for, by ordering the revision petitioner to pay the respondents monthly maintenance as already observed above.

3. The revision petitioner has contended that this Court inSakeer 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.

4. Heard.

5. Is there any illegality, irregularity or impropriety in the impugned order?

6. The materials on record substantiate that the Family Court had directed the revision petitioner to pay interim maintenance allowance to the respondents during the pendency of the proceedings. However, the revision petitioner was failed to pay the ordered amount and his defence was struck off. Accordingly, the Family Court allowed the application and directed the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.15000/- from the date of order. 7. 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 in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this Sub-Section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct;

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second