Court held Family Court cannot strike off defense under Section 125 Cr.P.C for failure to comply with maintenance orders, distinguishing civil from criminal jurisdiction.

ORDER

Dated this the 20th day of January, 2021

Order dated 21.01.2020 of Family Court, Malappuram in M.C.No.324 of 2017 is under challenge in the revision on hand. The revision petitioner is the respondent and the respondents in the revision are the petitioners in the M.C on the files of Family Court, Malappuram. By the impugned order, the Family Court has directed the revision petitioner to pay monthly maintenance at the rate of Rs.8,000/-and Rs.4,000/- respectively to the 1st and 2nd petitioners with effect from 24.12.2019. The above order is taken up in challenge by the respondent.

2. The facts of the case relevant for disposal of the revision are stated briefly hereunder:

For clarity, the parties to the revision will hereinafter be referred to as the petitioners and the respondent in accordance with their status in the M.C. before the Family Court.

The 1st petitioner and the respondent got married on 20.04.2014 and the 2nd petitioner was born on 23.06.2016.

The respondent neglected to maintain the petitioners since July, 2016. The respondent was working as an Ayurvedic Doctor under Central Government at Mahe and has a monthly income of Rs.50,000/-. Therefore, claiming Rs.20,000/- and Rs.10,000/- respectively as monthly maintenance to the 1st and 2nd petitioners, the M.C. was filed before the Family Court, Malappuram.

3. The respondent in the counter statement filed by him had denied the averments of the petitioners and raised defences of his own.

4. The respondent had filed O.P.No.765 of 2017 seeking for a decree for divorce. The 1st petitioner had filed I.A.No.1038 of 2018 in the above O.P. seeking for interim maintenance under Section 24 of the Hindu Marriage Act . I.A was allowed and the counter petitioner was directed to pay Rs.15,000/- as monthly maintenance to the petitioners therein. The counter petitioner did not comply with the order passed as above and therefore, the 1st petitioner had filed C.M.P.No.424 of 2019 seeking to strike off the defence of the counter petitioner. A petition of the nature was also filed in O.P.No.765 of 2017.

The Family Court has directed the counter petitioner on 31.12.2019 to clear off the arrears. It was further directed that his defence in the case would be struck off on failure to clear off the arrears. The counter petitioner failed to comply with the direction and thus his defence was struck off by the court. In the M.C, the 1st petitioner has filed proof affidavit. Since the defence was struck off, the Family Court solely relying on the on the facts sworn to by the 1st petitioner in the proof affidavit, found the 1st and 2nd petitioners entitled to get monthly maintenance and awarded Rs.8,000/- and Rs.4,000/- respectively as the quantum payable to them.

5. According to Sri.T.M.Raman Kartha, the learned counsel for the respondent, the Family Court is erred in striking off the defence of the respondent in the M.C. According to him, the defence of the respondent in the M.C was struck off by the Family Court arbitrarily without adverting to the facts and the law applicable in the case properly. According to him, the defence was struck off for non-compliance of the respondent of an interim order directing payment of interim maintenance passed in a civil case among the same parties pending before the court.

6. According to the learned counsel the Code of Criminal Procedure does not provide for authority to strike off defence in criminal cases. The Family Court while dealing with a claim for maintenance under Section 125 Cr.P.C is exercising ju