~~~~~~~

The revision petitioner is the respondent in M.C.No.176 of

2014 on the file of the Family Court, Irinjalakuda. The said petition

was filed by his wife and minor child under section 125 of the Code

of Criminal Procedure. By the impugned order , the learned Family

Court has struck off his defense for his failure to pay the interim

maintenance as ordered and proceeded to dispose of the case on

merits. Relying on the proof affidavit filed by the wife, the petition

was allowed and the petitioner was ordered to pay a sum of

Rs.3,000/- per mensem to the wife and Rs.2,000/- per mensem to

his minor son from the month of January, 2015 onwards. The said

order is under challenge in this revision petition.

2.

The learned counsel appearing for the petitioner would

place reliance on a decision of this Court in Sakeer Hussain T.P.

v. Naseera and others [2016 (4) KLT 186] and would contend

that in a proceeding under Section 125 Cr.P.C., which is governed

by the provision of Criminal Procedure Code, the power to strike

off defence does not exist, either by specific statutory provision or

by necessary implication and this would apply on all fours to the

3

Family Court as well. According to the learned counsel, if the

amount ordered as maintenance or interim maintenance remains

unpaid, it can only be levied by resorting to the procedure under

section 125(3) or by adopting the procedure under section 421 of

the Cr.P.C. for levying or recovery of fine, or by passing an order of

sentence against defaulter. It is further contended that the

petitioner is a deaf and dumb person with disability assessed at

96% by the Medical Board and he was always willing to maintain

his wife and child. This fact was mentioned to the Court below by

the mother. However, the submissions of the mother of the

petitioner was misinterpreted by the Family Court to mean that he

was not willing to pay any sum by way of maintenance.

3.

Though notice was served on the respondents there is no

appearance.

4.

From the order passed by the learned Family Court, it

appears that the petitioner had entered appearance and the parties

were referred to counselling. After counselling, the petitioner was

directed by the Family Court to pay a sum of Rs.2000/- to the child.

However, it was later reported to the Court that the petitioner had

defaulted in paying the amount ordered. The learned Family Court

recorded that the petitioner has no right to contest the matter on

4

merits and the parties were directed to appear. When they

appeared an explanation was sought and the mother of the

petitioner is said to have stated to the Family Court that they are

not in a position to pay any amount by way of maintenance. It was

in the said circumstances that the defense of the petitioner was

struck off and the case was posted for evidence.

5.

It has been held by this Court in Sakeer Hussain T.P.

(supra) that the Family Court in exercise of the power under

Section 125 of the Code of Criminal Procedure, cannot strike off

the defence. In view of the said position of law, the order passed

by the court below cannot be legally sustained. The petition is

therefore liable to be allowed. However, the petitioner will have to

pay some amount towards arrears due as on date. By interim order

dated 27.5.2016, the petitioner was directed to pay 25% of the total

arrears and 50% of the monthly maintenance as ordered by the

court below. It is submitted at the bar that the same has been

complied with.

6

In the result, the petition is allowed. The impugned

order will stand set aside. The matter is remanded back to the

Family Court for fresh consideration on merits. As an interim

measure, the petitioner herein shall pay 25% of the arrears within

a period of one month from today. He shall continue to pay 50 % of

5

the monthly maintenance as ordered by the Family Court to his

wife and child till final orders are passed by the court below. All

steps shall be taken by the court below to expedite th