Maintenance Application Under Chapter IX CrPC Cannot Be Dismissed For Default: Kerala High Court

The Kerala High Court recently considered whether an application filed for maintenance allowance under Chapter IX of CrPC can be dismissed for default (non-appearance of party seeking maintenance). Chapter IX, Section 125-128 of CrPC contemplates Order for Maintenance of Wives, Children and Parents.

Justice C.S. Dias observed that Magistrate has no implicit power to dismiss an application filed under Chapter IX CrPC for default summarily. In the facts of the case, the application was dismissed for non-representation of the petitioner-minor son who was appearing through his mother for claiming maintenance from the respondent-father.

“As long as there is no specific provision in the Code, the Magistrate has no implicit power to dismiss an application filed under Chapter IX for default summarily. The mindful exclusion of such power on the Magistrate is to achieve the benevolent intention of the legislation, which is to keep the body and soul of the neglected together.”

The Court further observed that the objective of chapter IX was to prevent vagrancy and to compel persons to perform their sacrament duty of maintaining their, children and parents who were unable to maintain themselves.

The petitioner was the minor son of the respondent-father who has approached the Family Court through his mother under Section 125 CrPC for maintenance. It was alleged that due to cruelty, the mother had to leave her matrimonial home during the advanced stage of her pregnancy. It was alleged that the father has denied providing maintenance since birth of the son. The Family Court ordered for payment of interim maintenance. For executing it, an application to execute the interim order was moved. It was alleged that the Magistrate dismissed the execution application for non-representation of the petitioner. Aggrieved with this, the petitioner has approached the High Court by filing revision petition.

The Court held that Chapter IX was a code in itself as it gives definitions, explains the procedure and grounds which entitle and disentitle a person from claiming maintenance etc. The Court noted that the objective of ‘maintenance’ under chapter IX of CrPC was based on the principles of social justice and Articles 15 (3), 21 and 39 of the Constitution of India to prevent destitution of women and children. The Court noted that the aim of providing maintenance to women and children was to ensure that they were not deserted and were able to live with dignity.

The Court stated that as per Section 256 CrPC, a Magistarte can dismiss a compliant for default if the complainant does not appear after issuance of summons. It held that maintenance application filed under Chapter IX of CrPC was not a complaint and cannot be dismissed for default.

“Under the Code, only complaints can be dismissed under Section 256. An application under Chapter IX is not a complaint falling within the purview of Section 2 (d) of the Code.”

Relying upon Sanjeev Kapoor v. Chandana Kapoor and Others (2020), the Court held that the embargo under Section 326 will not apply to orders passed by Magistrates in maintenance proceedings. It noted that the embargo under Section 326 was expressly relaxed in maintenance proceedings as Section 127 empowers Magistrate to cancel, vary, alter an order passed under Section 125 CrPC. The Court also relied upon the decisions in Sk. Alauddin alias Alai Khan v. Khadiza Bibi alias Mst. Khodeja Khatun and Others (1991) and Kusum Devi v. Ram Chandra Maurya and Another (2003) to state that Magistrate was empowered to restore an application filed under Section 125 CrPC was dismissed for default.

The Court stated that Section 126 CrPC provides the procedure for dealing with maintenance applications. It noted that the provision empowers the Magistrate to even proceed, hear and determine a case ex parte against a person who was willfully avoiding service or neglecting to attend the Court. The court further noted that the Parliament has willfully omitted to provide any power to the Magistrate to dismiss an application of maintenance for default.

“An analysis of the scheme of the Code and the provisions under Chapter IX leads this Court to the inevitable conclusion that an application for maintenance filed under Chapter IX is guided and governed by the procedure laid down under Section 126 of the Code. In the absence of implicit power to dismiss an application for default, the Family Court has gone wrong in dismissing the instant application.”

On the above observations, the Court set aside the order of the Magistrate and restored the application.

Counsel for the petitioner: Advocate Anitha Mathai Muthirenthy

Citation: 2023 LiveLaw (Ker) 624

Case title: Elon Christ Stephen v Steaphen Antony Venasious

Case number: RPFC NO. 400 OF 2023

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