Govinda Sahu vs Pratima Muduli

R.N. Biswal, J.—The Petitioner has challenged the legality, propriety and correctness of the order dated 18.7.2004 passed by the Judge, Family Court, Cuttack in Criminal Proceeding No. 401 of 1998 wherein he ordered that unless the opp.party/husband pays the arrear interim maintenance of Rs. 8,700/- by cash or draft to the Petitioner wife on or before 25.6.2004, his defence shall be struck off and the judgment shall be pronounced ex parte. Being aggrieved with this order the opp. party/husband has preferred this Revision. Hereinafter the opp.party/husband is referred as Petitioner and the Petitioner/wife as opp.party.

Learned Counsel for the Petitioner submits that there is no provision u/s 125 Code of Criminal Procedure to strike down the defence of the husband unless he pays interim maintenance to the wife. If the husband fails to pay the interim maintenance as ordered by the Court to the wife, warrant can be issued for levying the said amount, u/s 125(3) Code of Criminal Procedure, but the Court has no jurisdiction to strike off the defence of the husband and pass an order ex parte against him. In support of his submission the learned Counsel for the Petitioner relied on the decisions in Vinod Balap Vs. Smt. Chhaya Balap, and Gurvinder Singh v. Murti and Ors. Crimes 1- 1991 (1) (P&H) 18. In these decisions it has been held that there is no provision u/s 125 Code of Criminal Procedure to strike off the defence of the husband and pass an ex parte order against him if he fails to pay the interim maintenance to wife as per the direction of the Court concerned.

Learned Counsel for the opp.party, on the other hand submits that if the husband adopts a dilatory tactics to prolong the case u/s 125 Code of Criminal Procedure and the case continues for a long period as in the present case and the husband does not pay the interim maintenance as ordered by the Court, then to save the wife from hardship the Court can strike down the defence of the husband and pass an ex parte order. In support of his submission he relied upon the decision in Ashrif Ali Vs. Manjurain and Others, where his Lordship held as follows:

I thus do not accept the proposition that the only remedy available to the party who has been granted interim maintenance is to seek execution of the order u/s 125(3) of the Code. The Magistrate has all the powers to make his orders effective and this power includes the power to strike off the defence. If this power is not recognized, this will frustrate the very purpose of grant of interim maintenance. A husband/father can always delay the proceedings by playing delaying tactics and keep his wife and children on the road. Obviously the very purpose of introducing Section 125 was to save the wife and children from vagrancy.

There is no provision u/s 125 Code of Criminal Procedure for grant of interim maintenance. But still then to have the destitute wives and children from immediate hardship the Supreme Court and several other High Courts have held that interim maintenance can be awarded in their favour under the said provision. If it is held that 125(3) Code of Criminal Procedure is the only weapon to enforce payment of interim maintenance and nothing else then the very purpose of introducing interim maintenance would be frustrated. The destitute wives and children would suffer much hardship and they may not even be able to continue the proceeding. The Court has power to make his order effective. If the order for payment of interim maintenance passed u/s 125 Code of Criminal Procedure against husband/father is not complied with, the Court can strike down his defence. This view has been fortified by the decision "Ashrif Ali" (supra). With due respect, I cannot be in one with the view taken in the decisions Vinod v. Chhaya and Gurvinder Singh v. Murti and Ors. (supra). So in my view, the impugned order does not suffer from any procedural irregularity or error in law to be interfered with by this Court while sitting in revision.

Learned Counsel for the Petitioner submits that the Petitioner was paying the interim maintenance as awarded by the Court below regularly. As he failed to make payment for some months the impugned order was passed to strike down his defence. In fact evidence of the Petitioner has already been closed and the learned Judge, Family Court has reserved the judgment to be pronounced tomorrow (31.3.2005). The Petitioner is now ready and willing to pay the interim maintenance due on him. Under such circumstances, it is ordered that if the Petitioner pays the arrear interim maintenance due up to the months of March 2005 within fifteen days hence the judgment shall be pronounced on the basis of evidence on record or else it shall be passed ex parte against the Petitioner (husband) without taking his defence into consideration.

Accordingly the revision stands disposed.

Urgent certified copy of this order be granted on proper application.