Non payment of Interim Maintenance – Family Court cannot exercise a jurisdiction to strike off the defence

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SUNIL THOMAS, J.

R.P(F.C).No.177 of 2016

Dated this the 9th day of September, 2016

MC 33/2014 of FAMILY COURT,KOZHIKODE

PETITIONER:SAKEER HUSSAIN T.P, KOZHIKODE.
BY ADV. SRI.K.A.SALIL NARAYANAN
Vs.
RESPONDENT(S):NASEERA, KOZHIKODE AND OTHERS
BY ADV. SRI.P.C.SASIDHARAN

O R D E R

The revision petitioner, who is the respondent/husband in M.C.No.33/2014 of the Family Court, Kozhikode in a proceeding under Section 125 of the Cr.P.C. challenges the order granting maintenance to his wife and three children.

2. The wife laid an application under Section 125 of the Cr.P.C. seeking maintenance. The respondent appeared and filed an objection contesting the claim made by the wife and children. It was specifically contended that due to loss of eye sight, he was unable to maintain himself. Pending the proceedings, the Family Court ordered interim maintenance to the three children. On 25/11/2014, noting that the interim order of maintenance has not been complied with, the court below by Annexure-A1 order struck off the defence of the husband. The case was posted for hearing ex parte, since there was no representation for the husband. Later, applications for review and setting aside the ex parte order were filed, which were dismissed by separate orders. Thereafter, the court below, by the impugned order directed the husband to pay maintenance to the wife and children. This is assailed in this proceedings.

3. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

4. The main ground of attack of the learned counsel for the husband was that the Family Court had no power to strike off the defence of the respondents on the reasoning that the order for payment of interim maintenance was not complied with. It was contended that the Family court committed a grave error in striking off the defence and declaring the respondent ex parte. The family court was not vested with a power to strike off the defence. According to the learned counsel, the proper course open to the Magistrate for breach of an order of maintenance was to issue a warrant under Section 125 (3), for levying the amount due.

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5. Learned counsel relied on the decision reported in

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