The power to strike off a defense for non-payment of interim maintenance is a last resort, contingent on providing the opportunity to pay arrears first.

O R D E R

The revision petition is filed assailing the order in MC No. 234/2021 of the Family Court, Mavelikkara ordering the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.4,000/- each from the date of application. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court.

Brief facts

2. The respondents, the wife and son of the revision petitioner, had filed the application for an order of maintenance. Along with the application, the respondents also filed a miscellaneous petition for an order of interim maintenance. The Family Court allowed the said application directing the revision petitioner to pay interim maintenance allowance to the respondent. Subsequently, on the finding that the revision petitioner had failed to pay the interim maintenance allowance, his defence in the proceeding was struck off, and the maintenance application was allowed by confirming the interim maintenance order. The revision petitioner has contended that this Court inSakeer Hussain T.P. v. Naseera and Ors. and Hari B. v. Harsha S. & Anr. has emphatically held that the defence of a respondent cannot be struck off for 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.

3. Heard; Smt. Chitra Chandrasekharan, the learned counsel appearing for the revision petitioner. Although notice of the revision petitioner was served on the learned counsel appearing for the respondents before the Family Court, there is no appearance for them.

4. 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.

5. 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 proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of