Striking off the defence in maintenance proceedings for non-payment of interim maintenance is permissible under Section 125 of Cr.P.C., emphasizing compliance with court orders.

J U D G M E N T

This original petition has been filed to quash Ext.P10 order passed by the Family Court, Kollam.

2. The petitioner is the husband of respondent No.2. The respondent No.2 filed a maintenance case as M.C.No.326 of 2021 before the Family Court against the petitioner claiming maintenance. The respondent No.2 has also filed an application for interim maintenance as CMP No. 69 of 2023. The Family Court allowed the said application and directed the petitioner to pay monthly maintenance of Rs.9,000/- from the date of the petition to the respondent No.2. Though the petitioner challenged the said order before this Court, it was unsuccessful. Thereafter, respondent No.2 filed Crl.M.P.No.154 of 2024 to strike off the defence of the petitioner on the ground that the petitioner has not complied with the interim order of maintenance passed by the Family Court. The petitioner has filed an application as Crl.M.P.No. 155 of 2024 to cancel the order of interim maintenance. Both applications were considered by the Family Court together and a common order was passed. Crl.M.P.No. 155 of 2024 was dismissed and Crl.M.P.No.154 of 2024 was allowed. The defence of the petitioner was ordered to be struck off unless he pays the arrears of maintenance within twelve days. The said common order is under challenge in this original petition.

3. I have heard Sri.Arun Babu, the learned counsel for the petitioner and Smt.Hemalatha, the learned counsel for the respondent No.2.

4. The learned counsel for the petitioner submitted that an order for striking off defence cannot be passed in a proceedings under Section 125 of Cr.P.C. and hence the impugned order in Crl.M.P.No.154 of 2024 is not legally sustainable. The learned counsel further submitted that even if it is assumed that the Family Court has power to strike off the defence in a proceedings under Section 125 of Cr.P.C., the striking off defence could be done only as a last resort and such a situation is not there in this case. The learned counsel for the

2^nd respondent on the other hand supported the impugned order.

5. A reading of the dictum laid down inRajnesh v. Neha and Another [ 2020 (6) KHC 1 ] by the Supreme Court makes it clear that the defence can be struck off for non payment of interim order of maintenance in a proceedings under Section 125 of Cr.P.C. The interim order of maintenance was passed by the Family Court as early as on 12/11/2021, but the petitioner did not pay any amount in compliance with the said order. Though he challenged the said order before this Court, it was not successful. The Family Court, after evaluating the entire facts and circumstances of the case, came to the conclusion that the act of the petitioner in not complying with the interim order of maintenance amounts to willful disobedience and contumacious one since his intention is only to protract or delay the matter. The said finding of the Family Court got fortified by the subsequent acts of the petitioner. In the impugned order, though Family Court gave twelve days'

time to the petitioner to pay the entire arrears of interim maintenance, the petitioner instead of complying the same, has chosen to challenge it before this Court. When this original petition came up for hearing on last posting date, this Court gave an option to the petitioner to deposit the entire arrears of maintenance, so that the impugned order striking off the defence can be set aside and an opportunity could be given to him to contest the maintenance case on merits. The learned counsel for the petitioner took time to get instruction from the petitioner and after getting instruction, today, chose to argue the case on merits instead of depositing the entire arrears of maintenance. This act of the petitioner also shows his willful disobedience to comply with the interim order of maintenance passed by the Fa