Saturday, 15 October 2016

Whether family court can strike off defence for non payment of interim maintenance?

  It is pertinent to note that in the above cases, the

Hon'ble Supreme Court has considered the question of interim

maintenance which was not provided under the statute at that

time. Referring to the object of the statute, it was held that the

object of the statute was to compel a man to perform the


moral obligation which he owed to Society in respect of his

wife and children to ensure that they are not driven to a life of

destitute. Section 125 confers a summary procedure for

maintenance. The Court held that       courts must     have an

implied power to give effect to all its orders. However, the

court concluded that such a power may not be admissible in

all cases.   In the case dealt with by the Supreme Court, it

was held that the very object of the statutory provision was to

provide maintenance to deserted wife and children. However,

the Supreme Court found that normally the procedure takes

long time for final determination. During the above period, the

wife and children cannot be forced to lead a life of penury.

Hence, the court held that the courts have implied power to

grant interim maintenance which was a power embedded in

Section 125 Cr.P.C. and will advance the object of the statue.

Evidently, an implied power can be assumed only          as an

ancillary or derivate power or a concomitant power derived

from a specific authority conferred by Statue. Implied power

should always be a derivate power arising from an existing

provision and should be in accordance with the purpose and

object of the statutory. The power cannot be extended to a


case which is a power independent by itself and not visualized

or contemplated by the statute. Striking off defence is a very

exceptional jurisdiction which takes away a very valuable right

of party and which result in very serious consequences on

the litigant. Such an extreme step is not contemplated by the

statute.  Time and again courts have held that striking of

pleadings has very serious impact on the rights of party.{See

Abdul Razak v. Mangesh Rajaram Wagle [(2010) 2 SCC

432)] and Jayasree's case (Supra}. Further there is effective

remedy available for enforcement of interim maintenance.

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

governed by the provision of Criminal Procedure Code, power

to strike off defence does not exist, either by       specific

statutory provision or by necessary implication. It cannot be

assumed to exist as an      inherent or   implied power also.

Hence, the Family Court, in exercise of the power under

Section 125 of the Code of Criminal Procedure, cannot

exercise a jurisdiction to strike off the defence which is not

contemplated under the statute. Consequently, the decision in

Savitri's case (cited supra) is only to be held as the correct

law. However, that will not preclude courts from exercising


such implied power which are essential and concomitant with

the main powers and object of statute. In the light of the

above discussion, the decision of the Family Court to strike off

the defence and thereafter to pass an order of maintenance is

not legally sustainable and is liable to be set aside.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

              MR. JUSTICE SUNIL THOMAS
 8TH DAY OF SEPTEMBER 2016
                       RPFC.No. 177 of 2016
                      

            SAKEER HUSSAIN T.P, 
Vs
          NASEERA 

                

     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.

     5.     Learned counsel relied on the decision reported in

Swaminathan v. Priya (2014 Legal Eagle (Ker) 543) to

buttress the above argument. That was the case wherein the

Family Court, while adjudicating the application under section

125 Cr.P.C. had struck off the defence, which was challenged

before this Court. It was contended that the Family Court had

no power to strike off the defence for non payment of interim


maintenance.    Relying on the decisions in Vinod v. Chhaya

(2003 DMC 580) and Gurvinder Singh v. Murti (1991

CRI.L.J.2353), the learned Single Judge held that the Family

Court, in exercise of its power under 125 Cr.P.C., had no

power to strike off the defence. In Vinod's case (supra) the

Nagpur Bench of Bombay High Court held that Family Court

cannot strike out defence of husband for failure to pay interim

maintenance. The Court rested its reasoning on a premise

that civil procedure had no application to a proceeding under

section 125 Cr.P.C. and that proceedings would be governed

by Code of Criminal Procedure 1973. Same view was held by

the Punjab and Haryana High Court also in Gurvinder

Singh's case (supra).       It was held that the Magistrate

exercising the power under section 125 Cr.P.C. did not have

the power to strike off the defence for failure to pay interim

maintenance since order VI Rule 16 C.P.C. or, inherent power

of a civil court were not applicable to a proceeding under

section 125 of the Code of criminal Procedure. It was further

held that it could     be levied just as a final order for

maintenance, by resorting to the procedure under sections

125(3) and section 421 Cr.P.C. for levying or recovery of fine,



or by passing an order of sentence against defaulter. The

respondent against whom an order for interim maintenance

has been passed cannot be penalised with an order of striking

off his defence.

      6.      In Davis v. Thomas and Another (2007 (4)

KHC 363)       this Court, while considering the question of

striking off defence in a proceeding under Section 125 Cr.P.C.

pending before the Magistrate Court had held that, after

amendment of Cr.P.C. with effect from 24.09.2001, interim

maintenance could be granted only on the basis of a written

application. The court held that, in that case, there was no

application for granting interim maintenance and the order of

the court below to grant interim maintenance on the basis of

the oral submission was invalid and consequently order of

striking off the defence was bad.

      7.   Per contra, the learned counsel for the wife

contended that the court below was perfectly justified and was

well within its jurisdiction to strike off the defence in an

appropriate case, to meet the ends of justice. The learned

counsel placed reliance on the decision of the Division Bench

of this Court in Jayasree v. Vivekanandan (2012 (2) KLT


249), wherein the power of the Family Court to strike off the

defence was considered. That was a case           in which the

husband had sought custody of the child. Direction was issued

by the Family Court to handover the custody of the child to the

husband on a prescribed day. The wife failed to produce the

child. Thereupon, an application was filed under the Guardian

and Wards Act invoking order VI Rule 16 of the Code of Civil

Procedure to strike off the defence of the wife for violating the

order of the Court. The Court allowed the application and

struck off the defence. This was the subject matter of

challenge before the Division Bench.

     8.    The Court considered elaborately the various

provisions relating to striking off the defence. The court

referred to the decision of the Supreme Court in          Abdul

Razak v. Mangesh Rajaram Wagle [(2010) 2 SCC 432],

wherein, analysing the scope of order VI Rule 16 CPC, the

court held that the above provision empowered the Courts to

strike out the pleadings at any stage of proceeding, in any of

the three eventualities contemplated therein. Relying on the

above decision, the Division Bench concluded that Order VI

Rule 16 C.P.C. is applicable only to the specific situations


contemplated in the provision, touching upon the nature of the

pleadings.

     9. The Division Bench, thereafter, proceeded to consider

whether outside Order VI Rule 16 CPC, the Court has inherent

power to strike off the defence. The Division Bench held that

a Court is meant to do justice, no doubt, within the confines of

law and principles, which are settled from time to time. It was

held that if the Court is to be an effective adjudicator of

disputes, it must inevitably be clothed with necessary power to

deal with situations which arises so that the people will

continue to repose faith in the system and resort to lawful

means which are provided by the Courts. Hence, for the

purpose of preserving its power and effectiveness, the Courts

have inherent power to strike off defence, even outside Order

VI Rule 16 CPC.

     10. To substantiate the above conclusion, the Division

Bench also referred to the decision of a learned Single Judge

of this court in Parukutty Amma v. Thankamma Amma

(1998 (1) KLT 883), wherein           it was   held that while

deciding cases, for meeting the ends of justice, the court can

exercise the power to strike off the defence. The Court had


held that striking off the defence was well within the

jurisdiction of the Court in exercise of its inherent powers

under Section 151 CPC, although it was not the only order

which the Court could pass under the circumstances of the

case. The same view was expressed by another learned Single

Judge of this Court earlier in Mangalam v. Velayudhan

Asari [1992 (2) KLT 553). In that case, the defence of the

husband was struck off for non payment of the interim

maintenance ordered under Section 24 of the Hindu Marriage

Act. In that case Court held that the Courts are clothed with

inherent power to pass such orders as are necessary to meet

the ends of justice or to prevent the abuse of the process of

Court. Section 151 of the Code of Civil Procedure saved the

inherent powers of the court and, in exercise of that power,

the Courts can strike off the defence in deserving cases for

meeting the ends of justice. The Court had further held that

the court below had inherent power under Section 151 of the

Code of Civil Procedure to give effect to its order. Referring to

the above and various other decisions, the Division Bench

concluded that the power of the Courts to strike off the

defence is not confined to Order VI Rule 16 CPC, but can also


be invoked in appropriate cases, even under Section        151

C.P.C.

     11.    However, the Division Bench decision related to a

proceeding under the Guardian and Wards Act. The

jurisdiction under the said Act is vested in a District Court as

defined under the Code of Civil Procedure. Various provisions

of the Act, specifically sections 9, 10, 11 and 48, eminently

show that the procedure for adjudication under the Act is

governed by the Code of Civil Procedure. The decisions that

were relied on by the Division Bench were under the Hindu

Marriage Act and under the Guardian           and Wards Act.

Adjudication of disputes under Hindu Marriage Act is vested

in a civil Court. However in the case at hand, the specific

provision dealt with was under Section 125 Cr.P.C. Though

the Forum was the Family Court, the exercise of the powers

were those which were originally exercised by the Magistrate

under Section 125 Cr.P.C. By the enactment of Family Courts

Act, 1984, only Forum has shifted , but the substantive power

has to be traced to Section 125 Cr.P.C. The nature of power

exercised by Family Courts while dealing with section 125

Cr.P.C was settled by Full Bench of this Court in Satyabhama



v. Ramachandran ((1997)2 KLT 503). It was held that

Family Court act as a criminal Court and not as a Civil Court

while disposing of application under section 125 Cr.P.C and

that proceedings under Chapter IX of the Cr.P.C are criminal

proceedings. This was reiterated by another Full Bench in

Pater v. Sara (2006 (4) KLT 219 (FB). Though it may be

said that proceedings for maintenance are in the nature of

civil proceedings, the criminal process is applied for the

summary and speedy disposal of cases. The subtle distinction

of exercise of procedural Laws applicable to the Family Court

while adjudication of issues covered by different Statutes is

evident from section 10 of Family Courts Act 1984.Section 10

of the Act provides as follows:

       "10.Procedure generally:- (1) subject to the other

       provisions of this Act and the Rules, the provisions of

       the Code of Civil Procedure, 1908 (5 of 1908) and of

       any other law for the time being in force shall apply to

       the suits and proceedings (other than the proceedings

       under Chapter IX of the Code of Criminal Procedure,

       1973 (2 of 1974) before a Family Court and for the

       purposes of the said provisions of the Code, a Family

       Court shall be deemed to be a Civil Court and shall


       have all the powers of such Court.

              (2) Subject to the other provisions of this Act and

       the Rules, the provisions of the Code of Criminal

       Procedure,1973(2     of   1974)   or   the  rules   made

       thereunder, shall apply to the proceedings under

       Chapter IX of that Code before a Family Court. "

Neither expressly nor by necessary implication, Code of

Criminal Procedure confer a power identical to that of striking

off defence on criminal courts. Further, the Magistrate Courts

are not conferred with an inherent power similar to that of

Section 151 CPC. Hence, they cannot exercise inherent power

also. Consequently, the Division Bench decision in Jayasree's

case (supra) has no application to the facts of the present

case.

     12. The learned counsel for the wife further contended

that that Courts of Law have an implied power to enforce its

own decisions and to advance the cause of justice.               The

counsel relied on the decision of the Hon'ble Supreme Court

in Savitri v. Govind Singh Rawat [(1985) 4 SCC 337] to

contend that Courts have implied power to pass such orders

as are necessary to meet ends of justice.             In the above


decision, Supreme Court        while dealing with Section 125

Cr.P.C., as it then existed, held that the court can exercise

powers to meet the very object of the legislation. It was held

that in the absence of any express provision under Chapter IX

Cr.P.C., for awarding interim maintenance an implied power

can be assumed on the Magistrate to grant interim

maintenance, even though the statute did not specifically

provide that. The Court held as follows:

                  "Every Court must be deemed to

            possess by necessary intendment all such

            powers as are necessary to make its orders

            effective. This principle is embodied in the

            maxim 'ubi aliquid conceditur, conceditur et

            id sine quo res ipsa esse non potest (Where

            anything is conceded, there is conceded also

            anything without which the thing itself

            cannot exist.) Whenever anything is required

            to be done by law and it is found impossible

            to do that thing unless something not

            authorised in express terms be also done

            then that something else will be supplied by

            necessary intendment. Such a construction


            though it may not always be admissible in

            the present case however would advance the

            object of the legislation under consideration.

            A contrary view is likely to result in grave

            hardship to the applicant, who may have no

            means to subsist until the final order is

            passed.    There    is  no   room    for  the

            apprehension that the recognition of such

            implied power would lead to the passing of

            interim orders in a large number of cases

            where the liability to pay maintenance may

            not exist."

This view was reiterated in Shail Kumari Devi v. Krishnan

Bhagwan Pathak ((2008)3 KLT 576 (SC)). The learned

counsel contended that it should be deemed that Courts and

Tribunals are conferred with all such implied powers, unless

those powers are specifically barred.

     13.    It is pertinent to note that in the above cases, the

Hon'ble Supreme Court has considered the question of interim

maintenance which was not provided under the statute at that

time. Referring to the object of the statute, it was held that the

object of the statute was to compel a man to perform the


moral obligation which he owed to Society in respect of his

wife and children to ensure that they are not driven to a life of

destitute. Section 125 confers a summary procedure for

maintenance. The Court held that       courts must     have an

implied power to give effect to all its orders. However, the

court concluded that such a power may not be admissible in

all cases.   In the case dealt with by the Supreme Court, it

was held that the very object of the statutory provision was to

provide maintenance to deserted wife and children. However,

the Supreme Court found that normally the procedure takes

long time for final determination. During the above period, the

wife and children cannot be forced to lead a life of penury.

Hence, the court held that the courts have implied power to

grant interim maintenance which was a power embedded in

Section 125 Cr.P.C. and will advance the object of the statue.

Evidently, an implied power can be assumed only          as an

ancillary or derivate power or a concomitant power derived

from a specific authority conferred by Statue. Implied power

should always be a derivate power arising from an existing

provision and should be in accordance with the purpose and

object of the statutory. The power cannot be extended to a


case which is a power independent by itself and not visualized

or contemplated by the statute. Striking off defence is a very

exceptional jurisdiction which takes away a very valuable right

of party and which result in very serious consequences on

the litigant. Such an extreme step is not contemplated by the

statute.  Time and again courts have held that striking of

pleadings has very serious impact on the rights of party.{See

Abdul Razak v. Mangesh Rajaram Wagle [(2010) 2 SCC

432)] and Jayasree's case (Supra}. Further there is effective

remedy available for enforcement of interim maintenance.

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

governed by the provision of Criminal Procedure Code, power

to strike off defence does not exist, either by       specific

statutory provision or by necessary implication. It cannot be

assumed to exist as an      inherent or   implied power also.

Hence, the Family Court, in exercise of the power under

Section 125 of the Code of Criminal Procedure, cannot

exercise a jurisdiction to strike off the defence which is not

contemplated under the statute. Consequently, the decision in

Savitri's case (cited supra) is only to be held as the correct

law. However, that will not preclude courts from exercising


such implied power which are essential and concomitant with

the main powers and object of statute. In the light of the

above discussion, the decision of the Family Court to strike off

the defence and thereafter to pass an order of maintenance is

not legally sustainable and is liable to be set aside.

           In the result, the petition is allowed, impugned

order is set aside and the matter is remanded to the court

below for fresh consideration on merits. The court below shall

try to expedite the proceedings.        However, as an interim

measure, the petitioner/husband herein shall pay and continue

to pay at the rate of Rs.2000/- (Rupees Two Thousand only)

per month to the wife and Rs.1000/- (Rupees One thousand

only) per month to the children, till final orders are passed by

the court below. The parties shall appear before the court

below on 06.10.2016.

                                 
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1 comment:

  1. IS THERE ANY LAW TO DEPOSIT INTERIM MAINTENANCE UNDER PROTEST

    ReplyDelete