Sunil Thomas, J.Original petitioner herein is the father of the respondents herein, who are minors, represented by the mother. He had married the mother of the minors on 24.06.2001. After the birth of the children, relationship got strained and matrimonial proceedings were initiated. The children, through their mother, moved M.C.No.543 of 2010 before the Family Court, Thrissur, claiming monthly maintenance under section 125 Cr.P.C., 1973 Two proceedings were initiated by the mother and an application for Divorce was filed by the father. While the matters were pending, disputes were resolved. An endorsement was made on behalf of the children on the files and maintenance petition was dismissed, by Ext.P3 order. Thereafter, the children, came to know that the father had not withdrawn his application for divorce as agreed and had in fact obtained an exparte decree of divorce. Hence they filed M.P.No.1433 of 2013 to recall Ext.P3 order and to restore M.C.No.543 of 2010 to file. It was accompanied by another application to condone the delay in filing M.P.No.1433 of 2013. Family Court, after hearing both sides allowed the applications overruling the objections filed by the husband. This is assailed in this original petition.

2. The premise on which the above writ petition is laid and the argument was advanced was that the court below, after having dismissed the application, had no power under the Family Courts Act or the Rules framed thereunder, to restore or recall an order passed by it. It was contended that the statutory provisions did not enable the Family Court, which was essentially exercising the powers under section 125 Cr.P.C., 1973 and thereby governed by the provisions of the Cr.P.C, to restore the application which was dismissed. The further contention was that restoration of an application for maintenance under section 125 Cr.P.C , 1973was not contemplated under the Statute, either expressly or impliedly,but was in fact, barred under section 362 Cr.P.C., 1973 It was contended that the Court had no express, implied or inherent power to restore such an application. Per contra, learned counsel for the petitioner contended that even though no specific provision for restoration or recalling the order was available, to advance the cause of justice and in the interest of equity, the Courts have inherent and implied authority to recall its own order. Various authorities were cited by both sides in support of their contentions.

3. Learned counsel for the petitioner relied on the two Full Bench decisions of this Court to contend that Family Court, while exercising the jurisdiction under section 125 Cr.P.C,, 1973 acts as a criminal court and is governed by the Cr.P.C. In Satyabhama v. Ramachandran ((1997)2 KLT 503) [LQ/KerHC/2003/850] , it was held that Family Court act as a criminal court and not as a civil court, while disposing the applications filed under section 125 of the Cr.P.C., 1973 It was held that while exercising jurisdiction under Chapter IX Cr.P.C, the Family Courts act as a Criminal Court and not a Civil Court. This was in the light of section 7(2) of the Family Courts Act. This view was reiterated by another Full Bench in Peter v. Sara (2006(4) KLT 219(FB). However, Honble Supreme Court in Nanda Lal Misra v. Kanhaiya Lal Misra (AIR 1960 SC 882 [LQ/SC/1960/105] ) had taken the view that the relief of maintenance granted was essentially of civil nature. However, the Full Bench of this Court followed the Law laid down in S.A.L. Narayan Row and Anr. v. Ishwarlal Bhagwandas and Anr. (AIR 1965 SC 1818 [LQ/SC/1965/171] ). The question that was considered by the Honble Supreme Court in the above decision was whether proceeding taken for recovery of tax was a civil proceeding. In Mst.Jagir Kaur and another v. Jaswant Singh (AIR 1963 SC 1521 [LQ/SC/1963/39] ), the Supreme Court had held that the proceedings for maintenance are in the nature of civil proceedings and the remedy is a summary one. In Savitri v. Govind Singh Rawat (1985(4) SCC 357), Supreme Court held that jurisdiction under Chapter IX of Cr.PC was strictly not criminal jurisdiction. The code provides a quick remedy to the applicant. In the light of above, the nature of proceedings for maintenance is no longer in dispute. The above shows that the proceedings for maintenance are not in the nature of criminal proceedings though criminal process is applied for the purpose of summary and speedy disposal. The various judicial pronouncements referred above also indicate that the provisions under Chapter IX of the Cr.P.C form an entirely different class, distinct from other proceedings of criminal nature. Hence, it calls for an interpretation, which will advance the cause of justice and the laudable object of the statute.

4. Learned counsel relied on the decision in Balakrishnan v. Rajamma (1979 KLT SN 35 (C.No.71), wherein, a single Bench of this Court had held that the dismissal of an application under section 125 Cr.P.C , 1973for default cannot be restored invoking the inherent powers of the criminal court. It was held that the Criminal Procedure Code specifically conferred inherent power on the High Court, which impliedly excluded such powers from the subordinate criminal courts. Relying on the maxim Expressio unis est exclusio alterius, it was held that the express mention of one thing implies exclusion of another thing. It was held that since the High Court alone is conferred with power under section 482 Cr.P.C,, 1973 it is implied that the subordinate courts have no such power. In the absence of such inherent power, subordinate courts are not competent to revise their own orders in view of section 362 of the Cr.P.C., 1973 it was held.

5. The learned counsel, to contend that if a specific power is not provided, it cannot be assumed, relied on the decision in Bhupinder Singh v. Daljit Kaur (AIR 1979 SC 442 [LQ/SC/1978/336] ), in which, the Honourable Supreme Court held that any defence against an order passed under section 125Cr.P.C must be founded on a provision in the Code. Section 125Cr.P.C. is a provision to protect the weaker of the two parties, namely, the neglected wife. The decision implied that in the absence of a conferment of a specific provision, jurisdiction or authority cannot be assumed. Full Bench of Calcutta High Court in Harjeet Singh v. State of West Bengal (2005 KHC 2946) had held that once the Court lifts its pen after signature, it cannot put it once again except for rectifying a clerical or arithmetical error as contemplated under section 362 Cr.P.C., 1973 In the light of that specific provision, Court cannot either review or recall the order, even it is found that it offends the principle of natural justice, it was held.

6. The Chhattisgarh High Court in Subhash @ Prakash v. Priyanka Subhash Dewangan I(2014) DMC 325 (DB) (Chhat.) had held that section 10(1) of the Family Court, 1984, clearly conveyed an indication that CPC would not strictly and independently apply to proceedings under this Act. If any other provision is given under the, its application would be subject to that provision. Learned counsel relied on the above decisions to contend that the Court had no power to restore an application for maintenance dismissed for default or review the order of dismissal.

7. On the other hand, learned counsel for the respondents herein relied on Aliyar v. Pathu (1988(2) KLT 446), in which a Division Bench of this court, while dealing with the question whether an application for modification of a claim for maintenance under Section 127 Cr.PC ought to have been dealt with under the provisions of the Muslim Woman (Protection of Rights on Divorce) Act had made certain observations regarding the powers of Tribunal or Body empowered by law. It was held that Tribunal or body should be considered to be endowed with such auxiliary or incidental powers as are necessary to discharge its functions for the purpose of doing justice between the parties, unless there is any indication to the contrary in the statute. It was held that where an Act confers jurisdiction, it impliedly also grants the power of doing all such acts or employing such means, as are absolutely necessary to its execution.

8. In a different context, in Cheru Ouseph v. Kunhi Pathumma (1981 KLT 495), a learned Single Judge also made certain notable observations while dealing with the question whether a Rent Control Court possessed the power to restore a rent control application dismissed for default. It was held that, a court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Therefore, in respect of procedural matters, all powers which are not specifically barred by the statute or statutory rules should be attributed to a Tribunal so that it may effectively exercise its jurisdictional functions. The learned Single Judge proceeded to hold that, if the Rent Control court dismisses an application for default in the meanwhile, and if it is held to be powerless to restore it even when proper reasons are shown, that will be to allow past to persist into the present with all the merits on one side and dry technicality on the other.

9. In Mahua Biswas v. Swagata Biswas and Another (1998)2 SCC 359) [LQ/SC/1997/1490] , the Supreme Court considered the question whether subsequent to passing of the order of maintenance by the court, if parties compromise and start living together, but, later fall apart, whether, the earlier order of compromise can be revoked and a fresh proceeding initiated. It was contended by the husband that in such circumstance, order of maintenance could not be revived as there had arisen a fresh cause of action. Supreme Court overruling the view of the High Court held that maintenance order stood suspended during the period of compromise and was not completely wiped off altogether. It was held that in order to do complete justice between the parties, wifes claim to maintenance has to be activated and she has to be put in the same position as before. Supreme Court justified its finding on the ground that it was intended to render substantial justice and to advance the cause of justice.

10. In Kehari Singh v. State of U.P and Another (2005 CRI.L.J.2330), a Single Judge of the Allahabad High Court held that an application for maintenance, which was dismissed for default, can be restored by recalling or setting aside order of dismissal for effective adjudication on merits. The view expressed by the court was that if it was held that the court lacks the jurisdiction to restore an application dismissed for default, the very object and purpose of legislature would be frustrated. The paramount rule of interpretation which overrides others is that, the statute is to be expounded according to the intent of the think that made it. Therefore, if there is any lacuna in the statute, it is to be answered that Magistrates have such powers, which give effect to the will of legislature. The Court relied on the decisions of the various High Courts in Alauddin @ Alai Khan v. Khadiza Bibi @ Mst.Kohedja Khatun ((1991) CrlLJ 2035), Shabihul Hasan Jafari v. Zarin Fatma and another (2000 CRI.L.J. 3051) and Kamala Devi v. Mehma Singh (1989 Cri LJ.1866). In Lata Pimple v. The Union of India and Ors. (AIR 1993 Bombay 255), a Division Bench of Bombay High Court, while considering the constitutionality of the Family Court Act, had gone to the extent of indicating that provisions of the CPC apply to the proceedings of the.

11. Supreme Court had occasion to discuss the scope of powers conferred on tribunals and the courts, though in a different context, in S.D.Joshi and Others v. High Court of Judicature at Bombay and Others ((2011)1 SCC 252) [LQ/SC/1974/370] . The Honourable Supreme Court held that every court may be a tribunal, but every tribunal necessarily may not be a court. A court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its Constitution to exercise the judicial powers of the State. These courts perform all the judicial functions of the State, except those that are excluded by law from their jurisdiction. The Family Court constituted under section 3 of thehas all the trappings of a court and thus, is a court of limited jurisdiction, it was held.

12. In Kamla Devi v. Mehma Singh (1989)CRI.L.J.1866) a division bench of the Punjab and Haryana had occasion to consider the question whether a judicial magistrate can restore the execution application of an order passed under section 125 of the Cr.P.C,, 1973 which, was dismissed for default. The court held that Chapter IX CPC constitute a Code of Procedure by itself. It was noticed that proceedings in Chapter IX was inherently concerning civil rights. Criminal Procedure Code provides a swift and speedy remedy to the petitioner claiming maintenance who are being neglected. It is only in the matter of implementation of such orders that a stringent provision is made for recovery of such amount as recovery of fine or by sending the person against whom an order is made for imprisonment for a certain period till payment is made. Hence it was held that the remedy cannot be throttled by procedural technicalities like non appearance of petitioner. It was further held that there is no specific provision in Chapter IX to dismiss such applications for non appearance of petitioner, on a particular day. There may be sufficient and cogent reason for the petitioner not to put in appearance when case is called. In such circumstances, not to restore the application dismissed for default would result in miscarriage of justice. On a sufficient cause being shown, court should have inherent power in such cases to restore such applications dismissed for default. Such applications under Chapter IX are not to be equated with criminal complaints which necessarily are to be dismissed for non appearance of the complainant in view of Section 256 of Cr.PC. It is only in the exercise of inherent power of the court that for non appearance of the petitioner, application under Section 125 Cr.PC is dismissed. If that is so, there is no reason why there should not be inherent power with the court to restore such application dismissed for default, if sufficient cause for the non appearance is shown. The bench noted the observations of the Honourable Supreme court in Bhagwan Dutt v. Kamla Devi ((1975)2 SCR 483) [LQ/SC/1967/354] , and Savitri v. Govind Singh Rawat (1985)4 SCC 337) [LQ/SC/1975/459] and that of Prema Jain v. Sudhir Kumar Jain ((1980) Marriage LJ 17) and Suhir Kamra v. Smt. Neeta (1988) Marriage LJ 193).

13. In the above two cases, the question whether an application filed under Section 125 Cr.PC dismissed for default could be restored came up for consideration before the Delhi High Court. In Prema Jains case (Supra), it was held that held such an order of dismissal did not amount to a final order and Magistrate had jurisdiction to restore the said applications which were dismissed in default. It was held that, the restriction under Section 362 of the Cr.PC was not attracted as the order dismissed in default was not a final order. It was further held that the applications filed under Section 125 Cr.PC could neither be considered as a complaint nor a police report under Section 175 Cr.PC. The court elucidated various reasons to draw a clear distinction between a proceeding under Section 125 Cr.PC and a criminal complaint. It was pointed out that failure to maintain a wife or child has not been made by statute liable to punishment; the respondent is not to be treated as an offender; the petition under Section 125 Cr.P.C , 1973is not a complaint and no preliminary enquiry is liable to be held before the issue of process; that unlike a criminal trial, court can proceed against respondent exparte due to his non appearance and courts are competent to pass a final order behind his back. In the case of an accused, there is always a presumption of innocence, unless there is proof to contrary and in criminal prosecution, in the matter of interpretation, slant is against prosecution. Provision for maintenance has been provided in Cr.PC only to provide a speedy and swift remedy to helpless victims. Hence the provisions in Section 125 Cr.PC being a benevolent one, it has to be construed in favour of the person who seeks the relief there under. It was concluded that a petition under Section 125 Cr.PC and a complaint to have some punishment for a crime are not expected to be meted out with the same treatment. The same view was followed in Sudhir Kumars case (supra).

14. The above view was shared by the High Court of Uttar Pradesh in Shabihul Hasan Jafari v. Zarin Fatma and another ((2000) CrLJ 3051). It was held that the Magistrate was competent to recall or set aside the dismissal of a petition for maintenance. Calcutta High Court in Alauddin @ Alai Khan v. Khadiza Bibi @ Mst.Kohedja Khatun ((1991) CrlLJ 2035) was called upon to consider the sustainability of an order of Magistrate, by which an application under Section 125 Cr.P.C , 1973 dismissed for default was restored. The court, relying on the decision in Jagir Kaur v. Jaswant Singh (AIR 1963 SC 1521 [LQ/SC/1963/39] ), held that proceedings for maintenance were in the nature of civil proceedings, though the criminal process is applied for the purpose of summary and speedy disposal and hence Magistrate can invoke inherent powers to recall his earlier order, if sufficient grounds are shown. In Kusum Devi v. Ramchandra Maurya and others (2004 (1) Crimes 153 ) and Kehari Singh v. State of UP (2005 (Cri.LJ 2330), the Allahabad High Court held that an application for maintenance under Section 125 Cr.PC dismissed in default can be restored by the Magistrate by recalling or setting aside that order for effective adjudication on merits.

15. A Division Bench of this court in the decision reported in Mukundan v. Katyusha (2013(2) KLT 981) held that the Family Court has power to order joint trial, where parties are common and evidence is likely to be common. It was held that the mere fact of providing different appellate or revisional remedies does not fetter the Family Courts power to allow joint trial. It was held that none of the provisions under the can be understood as placing an embargo on the Family Court in permitting the joint trial of the different proceedings before it, since the is intended to ensure speedy justice in relation to issues arising out of family related issues and provisions of the should be interpreted bearing in mind, such laudable objective that are sought to be achieved by the.

16. However, contrary view was taken by few other High Courts, as contended by the learned counsel for the petitioner. In Subash @ Prakash v. Priyanka Subash (2014 DMC 325 (DB), Chattisgarh High Court held the view that Code of Civil Procedure would not strictly apply to proceedings pending before the Family Court. In Harijith Singh v. State of West Bengal (supra) a Division Bench of Calcutta High Court held that once the court lift its pen after signature, it cannot put it once again, except of the situation like for the purpose of rectifying a clerical or arithmetical error in the light of section 362 Cr.P.C., 1973 Both the above decisions are clearly distinguishable from the facts and legal issue involved in the present case. In the former, the only issue was whether the family court was bound to frame issues. In that context, the applicability of the Code of Civil Procedure came up for consideration. In the latter case, there is no doubt that Section 362 bars the reviewing of a judgment or final order or its alterations after court has signed the judgment or final order. The crucial question is whether courts have power beyond section 362 Cr.P.C., 1973

17. In Maj. Genl. A.S. Gauraya and another v. S.N. Thakur and another (AIR 1986 Supreme Court 1440), the Supreme Court had held that so far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific, provision in the Code, a Magistrate cannot exercise any inherent jurisdiction, to restore the case. In the light of the above decision, learned counsel contended that, the court cannot exercise any inherent power to restore the case.

18. Evidently, the above decision also is distinguishable from the facts of the case . There are subsequent decisions to the contra making distinction between the review of order passed under section 362 and revocation or recalling of an order. Further, the case involved in the above decision was a complaint filed under the Code of Criminal Procedure, which was totally different from the proceedings under section 125 Cr.P.C., 1973 which cannot be considered as a complaint, but a specie by itself distinguishable in content, form and substance, from that of a criminal complaint.

19. However, a learned Single Judge of Andhra High Court in Abdul Wahed v. Hafeya Begam and Others (1987 Crl.L.J.726), though noticed that section 125 to 127 Cr.P.C., 1973 have trappings of civil proceedings, the projection of right to recover maintenance apparently of civil nature are transplanted in Criminal Procedure for providing speedy and imminent relief. It was held that, Magistrate court cannot dismiss an application for maintenance for default. At the same time, it held that court cannot be powerless to restore the application dismissed for default. The only remedy was to set aside such orders in question.

20. The concept of auxiliary, incidental, implied and concomitant powers arising from the statutory authority conferred in courts have drawn the attention of the Honble Supreme Court in various decisions. Directly on the point for consideration in the present case is a decision in Savitri v. Govind Singh Rawat ((1985) 4 SCC 337 [LQ/SC/1985/329] ). That related to the implied powers of the courts dealing with Section 125 Cr.PC. The question that came up for consideration was whether the Magistrate considering the application for maintenance under section 125 Cr.P.C., 1973 had power to order grant of interim maintenance. Supreme Court held that Courts have implied powers to pass such orders as are necessary to meet the ends of justice. The court noticed that, at that point of time, there was no provision for granting interim maintenance under section 125 Cr.P.C., 1973 It was held that, in the absence of any specific prohibition, it was appropriate to construe the provisions of Chapter IX as conferring an implied power on the Magistrate to pass interim orders. It was held that, every court must be, deemed to possess, by necessary implication, all such powers as are necessary to make its order effective. The Supreme Court held that, it must be deemed that Magistrate Courts have power to order interim maintenance, which interpretation, will advance the object of the statute. It was held that the jurisdiction of a Magistrate under Chapter IX of the Cr.PC was not strictly a criminal jurisdiction.

21. The above view was endorsed in Shail Kumari Devi v. Krishnan Bhagwan Pathak (2008) 3 KLT 576 (SC). Supreme Court held that in the absence of any express provision under Chapter IX Cr.P.C for awarding interim maintenance, an implied power can be assumed on the magistrate to grant interim maintenance, even though the statute did not specifically provide for that. It was held that such a construction of legal principles would advance the object of the legislature.

22. In Vishnu Agarwal v. State of U.P.& Anr.(AIR 2011 Supreme Court 1232), the question was whether the judgment passed in the absence of a counsel was liable to be revoked or corrected by that Court. It was held that, the judgment passed by the court was liable to be recalled and section 362 Cr.P.C., 1973 will not operate as a bar. The Apex Court held that section 362 cannot be considered in a rigid and over-technical manner to defeat the ends of justice. The Supreme Court relied on the decision in Asit Kumar v. State of West Bengal and Ors (AIR 2009 SC (Supp) 282), wherein, it made a distinction between recalling of an order and review. It was held that the distinction between review petition and a recall petition was that, while in a review petition, the Court considers on merits whether there was an error apparent on the face of the record. In a recall petition, the Court does not go into the merits, but simply recalls an order, which was passed without giving an opportunity of hearing to the affected parties. It seems that, this distinction has been followed by few other High Courts as well. In Kehari Singh v. State of U.P. And another (2005 Crl.L.J.2330), the Allahabad High Court had held that ex parte order in a proceeding under section 125 Cr.P.C., 1973 can be restored by recalling or setting aside the order of dismissal for effective adjudication on merits. The Bombay High Court in Sau.Mandakini B.Pagire v. Bhausaheb Genu Pagire and Anr.(2009 Cri.L.J.70) held that dismissal of a maintenance application under section 125 Cr.P.C., 1973 for default can be recalled in exercise of inherent powers of criminal court. It was held that, once it was found that criminal court had inherent power to grant interim maintenance as held by the Supreme Court in Savithiris case (Supra), it follows that exercise of such inherent powers can be done for setting right the wrong, by recalling order dismissing maintenance petition.

23. A learned Single Judge of this Court had elaborately considered the distinction between the review and recalling of an order in the light of Section 362 Cr.P.C , 1973in Pushpangathan v. State of Kerala and Another (2015 (3) KHC 259 [LQ/KerHC/2015/491] ),. The Court after referring to the several authorities considered the subtle distinction between the review petition and recalling petition. The Court referred to the above decision of Supreme Court and also the decision of the supreme Court in State of Punjab v. Davinder Pal Singh Bhullar (2011 KHC 5083) and held that the power to recall a judgment or order is different from the power to alter/review the judgment. It was held that if the judgment has been pronounced without jurisdiction or in violation of the principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of Court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality, the order becomes a nullity and the provision of section 362 Cr.P.C., 1973 would not operate. In such a case, the order is manifestly contrary to the audi alteram partem rule of natural justice. It was held that concept of recall, review and/or alteration are to be distinguished clearly. It was held that when an order is recalled, the whole thing is abrogated and the parties are relegated to the original position i.e. to a stage anterior to passing any judgment or final order. Conceptually, review/alteration is done while the order is in existence or force. In the case of review, the existence of judgment or order must be recognised. When a judgment or a final order is recalled for valid reasons, the resultant legal effect is that the order itself is abrogated or uprooted and the parties will be relegated to a position that existed at the commencement of the proceedings. Hence, it was held that Section 362Cr.P.C does not affect the power of the Court to recall a judgment or order, if legal grounds are properly established by the party complaining.

24. In an earlier decision of the Honble Supreme Court in Madhua Biswas v. Swagatha Biswas and another (supra), an exactly identical situation as in the present case arose. The wife was granted maintenance under Section 125 Cr.PC. Subsequently parties arrived at a compromise and resolved to live together. That settlement did not continue for long and both fell apart. The contention of the husband that a fresh cause of action has arisen and that wife has to approach the court for a fresh relief was rejected. Supreme Court held that pending an attempt to reconcile the wife started residing with husband. The orders of maintenance stood suspended, but was not wiped out altogether. Hence it was held that in order to do complete justice between parties, the wifes claim to maintenance has to be activated and she was to be put in the same position as before.

25. In Badshah v. Sou. Urmila Badohah Godse and another (AIR 2014 SC 869 [LQ/SC/2013/1168] ), the Supreme Court emphasized the need to give a purposive interpretation to provisions of Section 125 Cr.PC. The Court held that while dealing with the applications of destitute wife or helpless children or parents under this provision, the court is dealing with the marginalized section of society. The purpose is to achieve "Social Justice" which is the constitutional mandate. The court emphasised the need for adopting different approaches by courts in "social Justice adjudication" and "social context adjudication". This calls for eschewing old, pedantic and archaic principle of holding that courts exercising functions under Section 125 to Section 127 Cr.PC do not have auxiliary, incidental and inherent powers for enforcement of the provisions, which will advance the object. Viewed from this angle, the decisions of various High Court holding that criminal courts have power to recall the order dismissing an application dismissed for default has to be endorsed. Necessarily, the decision of this court in Balakrishnan v. Rajamma (supra) should be held to be no longer good law in the light of subsequent decisions.

26. In the light of the above, I find no reason as to why the implied jurisdiction of the Court should not be extended to exercise of the powers to meet the ends of justice, unless there is an indication to the contrary, in the statute. Courts exercising power under section 125 to 127 Cr.P.C., 1973 are deemed to possess the implied authority to restore the matter, in appropriate cases. In the light of the above finding, the contention of the learned counsel for the petitioner that the impugned order is not legally sustainable is liable to be rejected. I find no reason to interfere with the impugned order, which is liable to be sustained.

27. In the result, original petition fails and is dismissed.