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.
IS THERE ANY LAW TO DEPOSIT INTERIM MAINTENANCE UNDER PROTEST
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