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.

4. Learned counsel for the petitioner/husband has invited attention of the Court to the order dated 14.9.2017 passed by this Court, wherein the learned counsel for the respondent wife has conceded that the entire amount of interim maintenance which had become due till the date of the final judgment by the trial Court has been deposited.

5. Learned counsel for the respondents wife and son has opposed the revision petition on the ground that interim maintenance is awarded to deserted wife or children by way of expeditious remedy so as to prevent destitution and vagrancy. The only effective way of recovery of interim maintenance is striking out the defence of the respondents. If the wife and children are compelled to adopt lengthy procedure as provided under Section 125 (3) of the Cr.P.C., which provides for recovery of arrears of maintenance allowance in the same manner as fine, the right would become virtually unenforceable during the pendency of the case and entire purpose of awarding interim maintenance would be defeated.

6. Accordingly, the only question that arises for consideration in this criminal revision is whether the Family Court had jurisdiction to strike out the defence of the respondent, in case of failure to pay the amount of interim maintenance awarded under second proviso to sub section (1) of Section 125 of the Cr.P.C

7. Before adverting to the legal precedents it would be apposite examine the statutory position.

8. Sections 128 and 125 (3) which lay down the procedure for enforcement of an order of maintenance read as hereunder:

128. Enforcement of order of maintenance.-- A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non- payment of the allowance, or as the case may be, expenses due.

125 (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each months allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him

9. Section 10 of the Family Court Act, 1984, which provides for procedure to be applied to the proceedings under the Act reads as hereunder:

10. Procedure generally.--(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 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) (2 of 1974), be- fore a Family Court and for the purposes of the said provisions of the Code, 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 (2 of 1974) 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 sub - ject-matter of the suit or proceedings or at the truth of the facts alleged by the one Party and denied by the other.

10. In this regard, we may take note of the various pronouncement of different High Courts. The Punjab and Haryana High Court in the case of Gurvinder Singh Vs. Murti and others 1991 Cri.L.J 2353 has held that defence of accused cannot be struck off for failure of the husband to pay the amount of interim maintenance. Instead the procedure prescribed under Section 125 (3) of the Cr.P.C. for recovery may be followed.

11. In the case of Vinod Vs. Smt. Chhaya 2003 (1) Crimes (HC) 458, the Bombay High Court has held that the Family Court has no power to strike out the defence for non-payment of interim maintenance. In that case the interim maintenance had been paid; therefore, the order striking out the defence was set aside.

12. The Kerala High Court in the case of Davis Vs. Thomas 2007 (4) ILR (Kerala) 389 has held that a Magistrate does not possess the power to strike off the defence for failure to pay interim maintenance. Just as the maintenance awarded under final order can be recovered as if it were a fine, the interim maintenance can also be recovered only as if it were a fine by resorting to the provisions of Section 421 of the Cr.P.C.

13. Likewise, in another case Sakeer Husain Vs. Naseera 2016(4) ILR (Kerela) 917 the Kerala High Court has held that power to strike off defence does not exist, either by specific statutory provision or by necessary implication. It cannot be assumed to exist as an inherent or implied power also. Hence, Family Court, in exercise of the power under Section 125 of the Cr.P.C. cannot strike off the defence which is not contemplated under the statute, for recovery of arrears of interim maintenance.

14. In the case of Ravindra Kumar Vs. Renuka and another, 2009 0 ILR(Kar) 4325 the Karnataka High Court has also held that defence of respondent cannot be struck off for non-payment of interim maintenance. The Court can only initiate action under Section 128 of the Cr.P.C. in such an event.

15. In the light of aforesaid pronouncements, it may be observed that originally there was no express provision for awarding interim maintenance to deserted wife, children or parents in Section 125 of the Cr.P.C.; however, the Supreme Court recognized such a right in the case of Savitri Vs. Govind Singh Rawat (1985) 4 SCC 337 . Later aforesaid right was incorporated in the Code of Criminal Procedure by way of second proviso to sub section (1) of Section 125 of the Cr.P.C. by virtue of Act No.50/2001 w.e.f. 24.9.2001; however, no specific provision for enforcing aforesaid right or recovery of arrears of interim maintenance was provided and Section 128 and sub-section (3) of Section 125 of the Cr.P.C. continued to provide the exclusive procedure for execution of an order of interim maintenance. Section 10 of the Family Courts Act also does not give freedom to the Court to devise its own procedure for enforcement of order of maintenance as it gives 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 the one Party and denied by the other

16. Thus, this Court is in respectful agreement with learned Single Judge of Kerala High Court in the case of Sakeer Husain Vs. Naseera 2016(4) ILR (Kerela) 917 that neither Section 125 (3) of the Cr.P.C. nor Section 10 of the Family Court Act either expressly or by necessary implication provides a power to a Magistrate or to Family Court akin to striking off the defence. Striking off defence is a very exceptional jurisdiction which takes away a very valuable right of a party and which results in very serious consequences. Such an extreme step is not contemplated by the statute. Moreover, there is statutory remedy available for recovery of interim maintenance; hence, in a proceeding under Section 125 of the Cr.P.C., the power to strike off the defence does not exist, either by specific statutory provision or by necessary implication. It cannot be assumed to exist as an inherent or implied power also. Hence, the Family Court, in exercise of power under Section 125 of the Cr.P.C. cannot exercise a jurisdiction to strike off the defence.

17. In the light of foregoing discussion, the order of the Family Court striking off the defence of respondent/husband is not legally sustainable and is therefore, liable to be set aside.

18. Consequently, the impugned order dated 9.12.2016 also deserves to be set aside.

19. In the result, the petition is allowed. The impugned order dated 9.12.2016 passed by Second Additional Principal Judge, Family Court, Bhopal in M.J.C. No.408/2013 is set aside.

20. The matter is remitted back to the Family Court for disposal in accordance with law on merits. The Family Court shall provide reasonable opportunity to the petitioner/husband to adduce evidence and shall thereafter, dispose of the case.

21. Let the proceedings of the Family Court be expedited. The petitioner/husband shall continue to pay interim maintenance as directed by the Family Court by its order dated 25.4.2014. The parties shall appear before the Family Court on 03.1.2018. It shall not be necessary for the Family Court to issue fresh notice to the parties.