IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 29^TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 RPFC NO. 443 OF 2023 AGAINST THE ORDER DATED 24.07.2023 IN MC NO.142/2021 OF FAMILY COURT, MAVELIKKARA REVISION PETITIONER:

PINCHU CHANDRAN, AGED 35 YEARS, S/O CHANDRASHEKHARAN PILLAI, PANIKATHU VEEDU, NADUVILEMURI, CHUNAKKARA, MAVELIKKARA, ALAPPUZHA 690534 REPRESENTED BY HIS POWER OF ATTORNEY HOLDER PADMINI AMMA, AGED 60 YEARS, W/O CHANDRASHEKHARAN PILLAI, PANIKATHU VEEDU, NADUVILEMURI, CHUNAKKARA, MAVELIKKARA, ALAPPUZHA, PIN – 690534 BY ADVS. S.SHANAVAS KHAN S.INDU KALA G.NAMBIAR RESPONDENTS:

1 ARYA J., AGED 32 YEARS, D/O JAYALEKSHMI, PARICHAPUGHA HOUSE, THEKKU KOCHUMURI,OACHIRA P.O., KRISHNAPURAM VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA, PIN – 690526

2 PUNYA, AGED 7 YEARS, D/O PINCHU CHANDRAN, PARICHAPUGHA HOUSE THEKKUKOCHUMURI,OCHIRA P.O.

KRISHNAPURAM VILLAGE KARTHIKAPPALLY TALUK ALAPPUZHA MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN THE FIRST RESPONDENT HEREIN, PIN – 690526 BY ADVS. V.VISAL AJAYAN A.SREEPRIYA(K/001393/2000)

THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

“CR”

Dated this the 29^th day of November,2023

O R D E R

The path of execution is not an easy-going highway; it does not provide short-cuts to the destination, observed this Court in Muraleedharan v. Jincy¹ relying on the decision of the Calcutta High Court in Anita Karmokar v. Birendra Chandra Karmokar²

2. Does the Family Court have the power to strike off the pleadings in a proceeding under Section 125 of the Code of Criminal Procedure,1973(for short, ‘Code’) on the failure to pay interim maintenance? is the question that emanates for consideration in this revision petition.

3. The respondents, the wife and child of the

1[2018(4) KHC 639]

2[AIR 1962 Cal.88]

revision petitioner, had filed M.C.No.142/2021 before the Family Court, Mavelikara, against the revision petitioner for an order of maintenance. The miscellaneous petition filed by the respondents’ for interim maintenance was allowed by the Family Court, ordering the revision petitioner to pay the respondents’ Rs.10,000/- per month. Subsequently, on the finding that the revision petitioner had failed to pay the interim maintenance, his defence in the proceeding was struck off, and the maintenance application was allowed by confirming the interim order.

4. The revision petitioner has contended that this Court in Sakeer Hussain T.P. v. Naseera and Ors.³ and Hari B. v. Harsha S. & Anr.⁴ has emphatically held that the defence of a respondent cannot be struck off on the failure to pay interim

3[2016 (5) KHC 167]

4[2021 KHC OnLine 60]

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.

5. Heard; Smt. Kala G. Nambiar, the learned counsel appearing for the revision petitioner and Sri. V. Visal Ajayan, the learned counsel appearing for the respondents.

6. The learned counsel appearing for the revision petitioner reiterated the contentions in the memorandum. She argued that Chapter IX of the Code is a self-contained Code. The remedy of the respondents was to file an application under Section 128 to execute the order and not a petition to strike off the defence. The Family Court ought not to have hastily struck off the valuable defence of the revision petitioner. The order is perverse and is liable to be set aside.

7. The learned counsel for the respondents defended the impugned order and submitted that the Family Court was justified in striking off the defence of the revision petitioner on his wilful failure to pay the interim maintenance to the respondents. He relied on the judgments of the Hon'ble Supreme Court in Kaushalya v. Mukesh Jain⁵ and the Division Benches of this Court in Mahesh v. Roopa, [6