High Court of Kerala bench comprising of Hon’ble Justice C.S. Dias, held that there was an absence of implicit power by the Family Court to dismiss the maintenance application for default since the application was guided by Chapter IX of CrPC, which enshrines maintenance.
Brief Facts: The minor son, through his mother, had filed a maintenance case against his father before the Family Court of Pala u/sec 125 of the Code of Criminal Procedure (CrPC). Here, the Family Court had only allowed the miscellaneous application for interim maintenance, yet the Respondent did not pay the same. When the application of the execution order came for consideration, the Court dismissed it on the ground of no representation. Therefore, this revision petition was filed by the son.
Contentions of the Petitioner: Adv. Ms. Anitha stated that even after the serving of notice, the Respondent did not appear in court; therefore, the execution order was filed. Further, the son alleged that his father refused to pay maintenance, which he is entitled to get under the ambit of Chapter IX of CrPC and even under the Constitutional provisions of Article 15(3) reinforced by Article 21 and Article 39.
Observations of the Court: The Hon’ble Court observed that the principles of social justice entitle the child to get maintenance, as pointed out by the learned counsel for the Petitioner. Further, on a careful analysis of Section 125 and Section 126 of CrPC, the court concluded that Parliament has consciously conferred power to give ex-parte decisions to the Magistrate as and when the occasion arises, which should have been used in this case to deal with the matter of no representation.
The decision of the Court: Therefore, the Hon’ble High Court held that the Family Court’s order of dismissal is erroneous and liable to be set aside. Rather, the Magistrate can give a decision ex parte and provide relief to the party.
Case Title: Elon Christ Stephen v Steaphen Antony Venasious
Coram: Hon’ble Mr. Justice C.S. Dias
Case No.: RPFC NO. 400 of 2023
Advocate for Revision Petitioner: Adv Anitha Mathai Muthirenthy
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