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
