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Shali Joseph & Another v/s S.K. Sasikumar


Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

    RPFC. No. 297 of 2013

    Decided On, 22 February 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE P. UBAID

    For the Petitioners: Soumini James, Advocate. For the Respondent: M. Ramesh Chander (Sr.), K.A. Sanjeetha, Balu Tom, Advocates.



Judgment Text

1. The revision petitioners herein are the petitioners in M.C No. 151 of 2011 of the Family Court, Thiruvananthapuram. They are aggrieved by the dismissal of the said maintenance claim brought under Section 125, Cr.P.C. The 2nd revision petitioner was aged 19 years as on the date of claim itself. The respondent herein is the husband of the 1st revision petitioner and the father of the 2nd revision petitioner. The first revision petitioner has been fighting against the respondent for 22 years for different reliefs. It is submitted that the first in the series of litigation was filed in 1995, but it was withdrawn on the basis of some conciliation. Then came O.P. 867/1997 before the Family Court for past and future maintenance. In the said proceeding, three items of properties of the respondent were attached. That attachment was challenged before this Court, and by the time, the said civil claim was decreed ex parte directing the respondent to pay maintenance to the wife and children at the rate of Rs. 1,000 each per month. Past as well as future maintenance was awarded at the said rate. Against that decree, the respondent herein approached this Court and he also obtained stay of execution of the decree in the maintenance case. As directed by this Court as a condition an amount of Rs. 5,06,360 was deposited, and the said amount was withdrawn by the revision petitioners. Thereafter, this Court directed the Trial Court to dispose of the civil maintenance claim on merits. Accordingly, it was disposed of in 2011 directing the respondent to pay maintenance to his wife at the rate of Rs. 2,000 per month, to the 1st child at the rate of Rs. 2,500 per month till majority, and to the 2nd child at the rate of 1,000 per month till majority. Pending such litigations, the wife and one of the children brought claim under Section 125, Cr.P.C. as M.C 151/2011. The decree passed by the Family Court in the maintenance claim on the civil side in 2011 is now under execution and it is submitted that the respondent has not paid any amount so far in compliance of the decree except the amount of Rs. 5,06,360 deposited by him as ordered by this Court as a condition for permitting him to contest the maintenance claim. Thus, for the last eight years, the civil decree for maintenance stands not satisfied. This is the history and background of the case.

2. The respondent herein entered appearance in the maintenance claim before the Family Court and resisted the claim on the contention that in view of the civil decree granting maintenance, his wife and daughter cannot claim maintenance under Section 125, Cr.P.C. Accepting the said contention, the learned Trial Judge dismissed the maintenance claim on 31.10.2013. The said order shows that no oral evidence was adduced by the claimants or the respondent. Before and without any evidence being recorded for a decision, the Trial Court just dismissed the maintenance claim on the sole ground that there is a civil decree in favour of the claimants. The said dismissal is under challenge in this revision brought under Section 19(4) of the Family Courts Act.

3. On hearing both sides, and on a perusal of the materials, I find that the maintenance claim will have to be decided on merits by the Trial Court. The fact that the claimants have obtained a civil decree for maintenance; past and future, cannot at all be a legal reason to deny maintenance under Section 125, Cr.P.C. The settled position is that when a claim is made for maintenance on the civil side and the criminal side, the order earlier passed by the competent Court can be considered by the Court adjudicating the other claim. The legal position stands well settled that a maintenance claim under Section 125, Cr.P.C cannot be denied solely on the ground that there is a civil decree in favour of the claimants. The Court will have to record evidence on both sides, examine whether the claimant is entitled to get maintenance under the law, examine the amount ordered by the Civil Court, examine the needs and necessities of the claimant and adjudicate whether the claimants require anything more for maintenance. If the claimants require anything more, the civil decree will not stand in the way of directing payment of maintenance under Section 125, Cr.P.C. Without understanding these aspects, the learned Trial Judge quite mechanically dismissed the maintenance claim saying that there is a civil decree in favour of the claimants. The maintenance claim should go back to the Family Court for decision on merits after recording evidence on both sides.

4. This Court directed the parties to file affidavit regarding the payments so far made and so far received under the civil decree. The affidavit filed by the revision petitioners shows that apart from the amount deposited by the respondent as ordered by this Court as a condition for allowing him to contest the civil claim for maintenance, he has not paid anything so far for the last so many years. The maintenance claim on the civil side was disposed of in 2011 directing him to pay maintenance to his wife and children at a particular rate. Admittedly, he has not complied with the decree, and he has not paid anything to his wife and children as maintenance in terms of the civil decree passed by the Family Court in 2011 on merits. It is such a person who contested the maintenance claim under Section 125, Cr.P.C. saying that the civil decree is a bar to grant maintenance under Section 125, Cr.P.C. The person who has not so far made payment of anything as maintenance to his wife and children in terms of the decree passed in 2011, resisted the maintenance claim saying that the said decree, which he has not so far complied with or satisfied, would stand in the way of granting maintenance under Section 125, Cr.P.C. Such a negative approach and attitude cannot be accepted. He will have to pay maintenance to his wife and children, if they are entitled under the law, and if the amount granted on civil side is not sufficient for the maintenance, or if it is not being properly and promptly paid by him. The maintenance claim should necessarily go back to the Trial Court for decision on merits.

5. In the particular facts and circumstances where the respondent has admittedly not paid anything to his wife and children for the last so many years, he cannot be let free, permitting him to face trial on merits before the Trial Court. He will have to pay some interim maintenance to his wife. Of course, the 2nd claimant was aged 19 years on the date of the claim under Section 125, Cr.P.C. itself. So he need not pay interim maintenance to the child. He will have to pay interim maintenance to his wife under Section 125, Cr.P.C. as a condition for permitting him to contest the matter on merits in the Trial Court. A person who has not so far made payment of any amount of maintenance to his wife and children for the last so many years cannot be allowed to contest the claim in the Trial Court freely at the second round. I feel that a minimum of Rs. 1,000 per month, which is 50% of the amount of maintenance ordered on the civil side, will have to be paid by the respondent to the 1st revision petitioner as interim maintenance under Section 125, Cr.P.C. till the claim under Section 125, Cr.P.C. is finally decided by the Trial Court on merits, and the said amount shall be payable from the date of dismissal of the maintenance claim. The arrear at the said rate till this date due to the 1st revision petitioner will have to be deposited by him in the Trial Court, within a month, and he will have to make payment in future at the said rate till the claim is disposed of on merits.

In the result, the revision petition is allowed. Accordingly the order of the Trial Court dated 31.10.2013 dismissing M.C. 151/2011 is set aside, and the matter is remitted to the Trial Court for fresh disposal on merits, according to law, within a period of si

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x months. In case, the respondent failed to deposit the arrear of interim maintenance ordered by this Court, in time, or in case he failed to make payment of future maintenance at the said rate as ordered by this Court, he will not be allowed to contest the case in the Trial Court. A decision on merits shall be taken by the Trial Court after recording evidence on both sides. But the respondent shall not be allowed to adduce evidence in case of his failure to make payment of the interim maintenance ordered by this Court. In case of such failure, decision on merits can be taken by the Trial Court in his absence. The 1st revision petitioner is permitted to receive the amount of interim maintenance paid or deposited. The parties will appear before the Trial Court on 25.3.2019. The case shall be disposed of within six months from the said date. Revision Petition allowed.
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