GOVINDA SAHU Vs. PRATIMA MUDULI

JUDGEMENT

(1.) 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.

(2.) LEARNED counsel for the petitioner submits that there is no provision under Section 125 Cr.P.C. 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, under Section 125(3) Cr.P.C., 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 v. Chhaya; 1(2003) DMC 580 and Gurvinder Singh v. Murti and others; Crimes 1 -1991(1) (Punjab and Haryana High Court) 18. In these decisions it has been held that there is no provision under Section 125 Cr.P.C. 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 under Section 125 Cr.P.C. 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 v. Manjurain & Ors. I (1992) DMC 472 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 under Section 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."