Home > Fighting Maintenance > Family Courts cannot order the Striking of Defence of Respondent Husband for not paying the Interim Maintenance Order in CrPC 125.

Family Courts cannot order the Striking of Defence of Respondent Husband for not paying the Interim Maintenance Order 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.

http://wp.me/p1HnJY-kN

 

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