Family Courts cannot strike off defenses for non-compliance with interim maintenance orders without affording a proper opportunity for evidence under the Code of Criminal Procedure.

O R D E R

Dated this the 20th day of February, 2023 The revision petitioner / husband is the respondent in M.C No.11/2018 of the Family court, Thiruvalla filed by the 1st respondent / wife and the 2nd respondent / child, seeking monthly maintenance at the rate of Rs.10,000/- to the 1st respondent and Rs.5000/- to the 2nd respondent respectively. As per the order in CMP No.135/2018, the Family Court directed to pay interim maintenance at the rate of Rs.3000/- per month. Later, by order dated 23.10.2019, the petitioner’s defense was struck off on the ground that the direction to pay interim maintenance was not complied with. Thereafter, the maintenance case was allowed based on the affidavit filed by the respondents. Aggrieved, the husband has filed this revision petition.

2. Learned counsel for the revision petitioner contended that the impugned order is liable to be set aside on the sole ground of having struck off the petitioner’s defence, thereby denying the opportunity to let in evidence. It is contended that the provisions in Chapter IX of Code of Criminal Procedure does not envisage striking off the husband’s defence for non-payment of interim maintenance. Reference is made to Sections 126 (2) of the Cr.P.C to contend that the procedure contemplated is the recording of evidence in the manner prescribed for summons cases and hence Section 254 would apply. In such event, all opportunity to let in evidence should be afforded. Denial of such opportunity would violate the fundamental right guaranteed under Article 20(1) of the Constitution of India. To buttress the contention, reliance is placed on the decision inSakeer Hussain T.P.v. Naseera and others [ 2016 (5) KHC 167 ] .

3.Learned counsel for the respondent relied on the decision in Muraleedharan v. Jincy [2018 (4) KHC 369] to contend that the Family Court is bestowed with the power to strike off the defence in appropriate cases.

4. As rightly contended by the learned counsel for the petitioner, Chapter IX of the Code of Criminal Procedure does not contain any provision for striking off the defence of the respondent for non compliance of the direction to pay interim maintenance. This aspect is elaborately dealt with inSakeer Hussain T.P (supra). Therein, the learned single Judge noted that as per Section 10 (1), provisions of the Code of Civil Procedure and or any other law for the time being in force is made applicable to the suits and proceedings (other than the proceedings under Chapter IX of the Code of criminal procedure) before the Family Court and for the purposes of the said provisions of the court, the Family Court shall be deemed to be a civil court and shall have the powers of such court. But as far as the provisions under Chapter IX of the are concerned, Section 10 (2) would to apply which is to the following effect “ subject to the other provisions of this act and the rules, the provisions of the , 1973 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that code before the Family Court.” Hence, the order of the Family Court, striking off the husband’s evidence was held illegal. InMuraleedharan (supra), the defence was struck off in an original petition filed by the wife for realisation of the value of gold and the money entrusted at the time of marriage. The husband’s defence in that case was struck off for failure to pay maintenance in the connected MC filed by the wife. It is clear from a reading of Section 10 that such power is vested with the Family Court, the Original Petition being a civil proceeding. Hence, the dictum in theMuraleedharan (supra) will not apply to this case.

5. The interim order of maintenance passed by the Family Court required the petitioner to pay maintenance at the rate of Rs.3000/- each. As the petitioner was taken into custody for non-payment of maintenance ordered, this court passed an order on 15.12.2022, directing to release the petitioner on condition that the revision petitioner should deposit