VENKATESHWAR DWIVEDI Vs. SMT. RUCHI DWIVEDI

JUDGEMENT

(1.) This criminal revision filed by petitioner/husband (hereinafter referred to in this order as "husband") is directed against order dated 9.12.2016 passed by Second Additional Principal Judge, Family Court, Bhopal in M.J.C. No.408/2013, whereby the husband was directed to pay maintenance under Section 125 of the Cr.P.C. to respondent No.1 wife (hereinafter referred to in this order as "wife") at the rate of Rs. 8000/- per month and to respondent No.2 son (hereinafter referred to in this order as the "son") at the rate of Rs.5000/- per month.

(2.) The facts giving rise to this criminal revision may briefly be stated thus: Wife moved an application under Section 125 (1) of the Cr.P.C . against the husband for grant of monthly maintenance allowance for herself and her four years old son Anshuman on 17.7.2013. By order dated 25.4.2014 learned Principal Judge, Family Court, Bhopal jointly awarded interim maintenance to the wife and the son at the rate of Rs.3000/- per month from the date of the application. One of the conditions (F) imposed in the order was that regular payment of interim maintenance by the husband shall be condition precedent for his further participation in the proceedings. In case the husband failed to pay interim maintenance regularly, neither would he be entitled to cross examine the witnesses of the wife nor would he be entitled to adduce his own evidence in defence. In future also he would not be able to participate in any proceedings. Accordingly, the wife adduced her evidence and the case was fixed for evidence of the husband by order dated 7.7.2015. The husband admittedly failed to pay the amount of interim maintenance regularly; therefore, by order dated 16.9.2015 he was warned by the Family Court that if he failed to deposit the entire arrears of interim maintenance by next date, condition no. (F) imposed upon the husband by order dated 25.4.2014 would be made effective and right of the husband to adduce evidence in defence, would be struck off. Inspite of aforesaid warning, the husband failed to deposit entire arrears of the interim maintenance till the next date; therefore, by order dated 3.11.2015 the right of the husband to adduce evidence in defence was struck off by virtue of condition 'F' mentioned in order of interim maintenance dated 25.4.2014. Subsequently, impugned order dated 9.12.2015 awarding maintenance to the wife and son as stated above, was passed:

(3.) The impugned order has been challenged in this revision on behalf of the husband on the limited ground of jurisdiction of the Family Court to strike off the defence of the husband. It has been urged that earlier there was no express provisions in the Code of Criminal Procedure for grant of interim maintenance. Later, such provision was inserted in Section 125 (1) of the Cr.P.C . by way of second proviso by Act No.50/2001 w.e.f. 24.9.2001; however, no separate procedure was prescribed for enforcement of order for interim maintenance. Thus, the procedure for recovery of interim maintenance is same as that provided under Section 128 and sub-section (3) of Section 125 of the Cr.P.C. for execution of final order of maintenance. As such, neither the Magistrate nor the Family Court has jurisdiction to deviate from the procedure provided under Section 125 (3) of the Cr.P.C . and enforce the order by striking out the defence of the respondent; therefore, condition no.'F' of order dated 25.4.2014 is liable to be struck off and orders dated 3.11.2015 striking out the right of the husband to adduce evidence and consequent impugned order dated 9.12.2015 directing final maintenance without the evidence of the husband, is liable to set aside.