Bombay HC- Court cannot struck off the defense of Husband if no interim maintenance is paid in CrPC 125
Good News for people fighting CrPC 125 Maintenance Case.
Everybody here would wonder the subject line but yes there’s a good news for you all……
If are you fighting the CrPC 125 petition and if the interim maintenance order is passed against you, and if you are not paying the Interim Maintenance so the Court cannot Strike Out your defense……yes its true…….Family Court does not have power to strike out your defense…….!!!!!!!!!!!
Today I had date in Family Court for Final Argument and even my defense was struck which was later on set aside in respect of the Set-A-Side application filed by me and by making payment of Rs. 8000/- against the outstanding of Rs. 45000/-. But specific order was passed while setting aside the Defense Struck on 19th July 2012 which is as follows-
” The order of Striking off the defense is set aside. However, NA is specifically directed to deposit remaining amount on or before the date of Final Argument.”
Till date I dint comply the above order, but today when I along with opposite lawyer appeared in FAMILY COURT for argument, the opposite took strong stand regarding the Argument of NA as he didn’t complied the Order he is not allowed to argue. And the Court which is the enemy of Husband immediately followed and again strike out my defense forbidding me to carry out the Arguments.
But have anyone wondered that there is no legal provision under Section 125, Criminal Procedure Code and hence there is no power in the Family Court to strike out the defence for non payment of interim maintenance.
If any person fails without sufficient cause to comply with the order and only thing that can be under Section 125(3) is to issue warrant for levying the amount due in the manner provided for levying fines or for imprisonment as provided for in the said Sub-clause (3) of Section 125 of Criminal Procedure Code.
The Family Court is governed by the Family Courts Act. The procedure is to be followed by the Court under the said Act is as laid down under Section 10, which is as follows :
Procedure generally. —
(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 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) 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 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one Party and denied by the other.
Hence its absolute rule that Family Court does not have power to stike out your defense….also the same has been observed in the Judgement of Bombay High Court, below.
I did the same and the court not only set aside the Defense Struck order but also allowed me to file my written arguments immediately.
So Siffians if your defense is struck off due to the non payment of Interim Maintenance then pls use the above rule and judgment to set aside the same.
Here’s the Judgement.
Bombay High Court
JUDGMENT
R.S. Mohite, J.
1. Heard the advocate for the applicant. None for the respondent, though served.
2. This is a revision filed by the applicant who is husband of the respondent. The respondent-wife had filed a petition being Petition No. E-307/99 in the Family Court No. 2, Nagpur for grant of maintenance @ Rs. 1500/- per month. In the said application she preferred an application for grant of interim maintenance and by an order dated 8-12-2000, she was granted an interim maintenance @ Rs. 800/- per month. The husband was not paying the interim maintenance, but was in arrears from November, 2001 till February, 2002. In the circumstance, the respondent-wife preferred an application on 29-1-2002 making a grievance for non payment of interim maintenance and seeking a striking out of the defence of the non applicant.
3. It appears that on the application, on 29-2-2002 the Court passed an order asking the other side to say. On 5-3-2002 the Court passed the further order that there was no say filed by the other side and hence the matter was directed to be put up for orders. An endorsement on the said application reveals that the applicant-husband received the copy of that application on 28-3-2002. However, on 28-3-2002 itself, the trial court allowed the said application and struck of the defence of the respondent. In fact, the record indicates that on 28-3-2002 the applicant had deposited Rs. 4,000/- which were the arrears for five months, in the Court.
4. The contention of the applicant that there is no provision under Section 125, Criminal Procedure Code to strike out the defence. If any person fails without sufficient cause to comply with the order and only thing that can be under Section 125(3) is to issue warrant for levying the amount due in the manner provided for levying fines or for imprisonment as provided for in the said Sub-clause (3) of Section 125 of Criminal Procedure Code.
5. The submission made on behalf of the applicant that there is no legal provision under Section 125, Criminal Procedure Code and hence there is no power in the Family Court to strike out the defense for non payment of interim maintenance is agreed to be a legal position. The Family Court is governed by the Family Courts Act. The procedure is to be followed by the Court under the said Act is as laid down under Section 10, which is 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 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) 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 or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.
(3) Nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceedings or at the truth of the facts alleged by one Party and denied by the other.
6. It may be seen from the above that insofar as an application for maintenance under Section 125, Criminal Procedure Code, the same falls under Chapter IX of the Criminal Procedure Code and hence Civil Procedure Code has no application and the proceedings would be governed by the Court by Criminal Procedure,
7. In this view of the matter and also considering the circumstance, that the amount due had been paid. I am inclined to allow the revision. The revision is allowed in terms of prayer Clause (2).
8. Rule is made absolute accordingly.
9. The application under Section 125, Criminal Procedure Code will proceed expeditiously and in view of the rule being made absolute, the defense of the applicant-husband will be taken into account.
Gladiator 