Kerala High Court
Syamala vs Salim on 21 January, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940
RP(FC).No. 34 OF 2017
(ORDER DATED 14.11.2016 IN CRL.M.P. NO.424/2013 IN MC NO.387/2012
ON THE FILES OF THE FAMILY COURT, KOTTARAKKARA)
REVISION PETITIONERS/PETITIONERS:
1 SYAMALA,
SYAM NIVAS, EDAMON VILLAGE, PATHANAPURAM.
2 VAISHNAV (MINOR),
SYAM NIVAS, EDAMON VILLAGE, PATHANAPURAM.
NOW RESIDING AT C 47, ROOM NO 365, SION MUMBAI,
REPRESENTED BY SYAMALA, 1ST PETITIONER.
BY ADV. SRI.V.PREMCHAND
RESPONDENT/RESPONDENT:
SALIM, SUDHA VILASAM,
KAMUKUMCHERY, PIDAVOOR VILLAGE, KARYARA P.O.,
PATHANAPURAM, KOLLAM DISTRICT-695018.
BY ADVS.
SMT.V.DEEPA
SMT.N.G.SINDHU
SRI.R.SURAJ KUMAR
SRI.SAJITH C.GEORGE
SRI.SUNIL J.CHAKKALACKAL
SRI.V.K.UNNIKRISHNAN (KOLLAM)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON
21.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP(FC):34 OF 2017 2
ORDER
The 2nd petitioner is the minor son of the respondent herein. Raising his entitlement for maintenance under Section 125 of the Code of Criminal Procedure (for short "the Code"), an application was filed before the Family Court, Kottarakkara. In the application, the 2 nd petitioner was described as represented by the 1 st petitioner, his maternal grandmother.
2. It was contended in the application that the 2 nd petitioner was under the care and protection of the 1 st petitioner and he requires a sum of Rs.5,000/- towards maintenance. It was further contended that the respondent was having sufficient means and that he had neglected the 2nd petitioner from the year 2012. It was also pointed out that an earlier application for maintenance was filed by the mother of the 2 nd petitioner and the jurisdictional court was pleased to order maintenance at the rate of Rs.400/- per mensem. However, the said order was never complied with.
3. The respondent entered appearance and challenged the very maintainability of the petition. It was contended that the minor RP(FC):34 OF 2017 3 along with his mother were permanently residing in Mumbai and his wife was gainfully employed. He would point out that the child was not residing with the 2nd petitioner and hence, she cannot be heard to contend that she has no source of income to maintain the minor child. The respondent challenged the locus standi of the 1 st petitioner to maintain the application and filed a petition to hear the question of maintainability as a preliminary issue.
4. The learned Family Court considered the submissions and held that the claim of the 1st petitioner that she has no source of income to maintain the child cannot be accepted, as the 2 nd petitioner was residing with his mother in Mumbai. It was held that the application itself is not maintainable. The above order is assailed in this revision petition.
5. The learned counsel appearing for the petitioners contended that the order passed by the court below is perverse and against all tenets of law. He would refer to Section 125 of the Cr.P.C. and would contend that the learned Magistrate was bound to consider whether the respondent was a person having sufficient means and also whether he had neglected or refused to maintain his child, who is RP(FC):34 OF 2017 4 unable to maintain himself. Upon proof of such neglect or refusal, orders had to be issued to the respondent to make monthly allowance for the maintenance of the child. In the instant case, admittedly, the minor son of the respondent was the 2 nd petitioner and the 1st petitioner admittedly is a person having sufficient interest in the minor child. Before the trial had commenced, the mother of the child had also executed a power of attorney authorizing the 1 st petitioner to conduct the proceeding for and on her behalf. According to the learned counsel, Section 125 of the Cr.P.C provides a speedy remedy by a summary procedure to enforce liability of maintenance and the courts are bound to liberally construe the provisions as the primary object is to give social justice to women and children and to prevent destitution and vagrancy.
6. The learned counsel appearing for the respondent would refute the submissions advanced and it was contended that the attempt of the 1st petitioner was to reap unjust enrichment in the name of the 2nd petitioner. The minor child is living in Mumbai with his mother and he is also pursuing his education there. There were numerous discrepancies in the petition and even the income of the mother was not mentioned anywhere in the petition. RP(FC):34 OF 2017 5
7. I have considered the submissions advanced and have gone through the pleadings and the materials made available.
8. For appreciating the rival contentions, it would be apposite to have a glance through the relevant provisions. Section 125 (1) of the Cr.P.C. reads as follows:
"Section 125 - Order for maintenance of wives, children and parents:
(1) If any person having sufficient means neglects or refuses to maintain.-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate RP(FC):34 OF 2017 6 thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
(3) xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her RP(FC):34 OF 2017 7 husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
9. Section 125 of the Cr.P.C. has been enacted to prevent vagrancy and destitution and the said provision provides a summary and speedy remedy. The provision has a social purpose to fulfill and in arriving at any finding in relation to an application thereunder, the courts are bound to look to the substance rather than to the form and advisedly must avoid strict technicalities of pleading and proof. A realistic approach is to be adopted so that the rights of the parties are not trampled or diluted by technicalities of law. Section 125 is not intended to provide for a full and final determination of the status and personal rights of the parties. The order passed is tentative and is subject to the final determination of the rights in a civil court. The provision gives effect to the natural and fundamental duty of a man to maintain his wife, children and parents so long as they are unable to maintain themselves. The object of the provision is not to punish a parent for his past neglect, but to prevent vagrancy by compelling those who are having the ability to support those dependents who are themselves unable to do so and those who have a moral claim to be supported.
RP(FC):34 OF 2017 8
10. Section 125 gives entitlement to the wife, minor child or parents to approach the jurisdictional Court and seek maintenance and all that they need to show is that the respondent, who may either be the husband, father or son as the case may be, is a person with sufficient means and that he has neglected or refused to maintain them. If they are able to provide proof of neglect or refusal and also the fact that they are unable to maintain themselves, the courts may order such person to pay maintenance at such rate as it thinks fit.
11. The Apex Court in Ramesh Chander Kaushal v. Veena Kaushal and Ors. (AIR 1978 SC 1807) speaking through Justice V.R. Krishna Iyer held that Section 125 is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. It was further held that sections of statutes calling for construction by Courts are not petrified print, but vibrant words with social functions to fulfill. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause-the cause of the derelicts. RP(FC):34 OF 2017 9
12. Now, to the question is whether the application filed by the petitioners could have been rejected as not maintainable.
13. Section 125 of the Code requires an application to be filed by the aggrieved person. This would be discernible from Sub Section (2) of Section 125 which states that that the allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.
14. The question whether the law requires that the person neglected must himself or herself move an application had come up for consideration before a Division Bench of this Court. In Ramakrishnan v. Kali [1987 (2) KLT 938], the fact was that a daughter moved the court on behalf of her mother seeking maintenance from the son. The learned Magistrate allowed the petition and the said order was confirmed by the revisional court as well. The aggrieved respondent approached this Court and filed a petition under Section 482 of the Cr.P.C. A contention was advanced that the application under Section 125 filed by the mother as RP(FC):34 OF 2017 10 represented by the daughter as the next friend was not maintainable in law in as much as, there can be no application through a next friend. The learned Single Judge, before whom the matter had come up, having regard to the importance of the question raised, referred the matter to be heard by a Division Bench. In paragraph Nos. 7 & 8 of the judgment, U.L. Bhat, J., as he then was, held as follows.
"7. The question which next arises for consideration is whether the law requires that the person neglected himself or herself must move an application. A careful examination of the provisions in Chapter IX would indicate that the legislature did not intend to place any such restriction on locus standi. The provisions in Chapter IX of the Code have a great social purpose to serve, alleviation of destitution and avoidance of vagrancy. The sensitivity of this statutory purpose is heightened by the constitutional concern expressed in the directive principles of State policy. Section 125 does not necessarily follow the provisions in Personal Laws creating rights and liabilities in regard to maintenance. To a considerable degree the provisions of Chapter IX depart from the rights and liabilities which may be inherent in the parties under their Personal Law. The provisions create or at any rate, recognise an obligation on a person to maintain relatives falling within the ambit of Clauses (a) to (d) of Section 125(1). The persons who fall within the ambit of Clauses (a) to (d) must necessarily be deemed to have a right to claim allowance; necessarily they must have a remedy to enforce the right. Equally the persons on whom the provision imposes the burden have a duty to maintain their relatives. In our opinion, the persons falling under Clauses (a) to (d) of Sub-section (1) who complain of denial of maintenance are aggrieved persons who have locus standi to move the court for an order of maintenance as contemplated in Chapter IV. Ordinarily they are expected to approach the proper court with a proper application.
8. This, however, cannot and does not necessarily mean that no other person can move the court. As indicated in several decisions of the Supreme Court and of this Court RP(FC):34 OF 2017 11 [See Bai Tahira v. Ali Hussain Fissalli Chothia and Anr. [A.I.R. 1979 S.C. 362], Mst. Jagir Kaur v. Jaswant Singh [AIR 1963 S.C. 1521], Ramesh Chander v. Veena Kaushal [A.I.R. 1978 S.C. 1807] and Balan Nair v. Valsamma [1986 K.L.T. 1378] the provision in Section 125 is a measure of social defence intended to protect human rights. The provision has to be interpreted bearing in mind the great social purpose behind the provision. We notice that neither section nor any other provision in Chapter IX of the Code indicates any restriction in the manner of approach to the Magistrate. It does not expressly or by necessary implication indicate that only the person neglected can move the court by an application. The Magistrate is to act on proof of the ingredients contemplated in the provision, viz., that the person arrayed as Respondent has sufficient means and that he has neglected or refused to maintain his relatives who fall within the category of Clauses (a) to (d). We are not inclined to accept that only the person who has suffered neglect can move the court. Any other person who has sufficient interest in the person neglected can also move the court by way of application."
15. Further in paragraph No.11 of the judgment, it was held as follows:
"11. It is open to the person neglected to move the court by way of an application. It is also open to another person who has sufficient interest in the person neglected to move the court by an application under Section 125. It has been suggested at the bar that even a social worker has locus standi to file an application. We do not think in this case we are called upon to decide whether it is so. In this case it is the daughter who moved the court on behalf of her mother. A daughter must certainly be treated as a person having sufficient interest in her mother. She has locus standi to move the court. However, we do not think that the petition should have been brought in the name of the mother or that the daughter should have been described as the next friend. This complicated situation was brought about because the mother was very old and sickly and unable to move about at the time when the application was filed. We find that the mother herself came to court to give evidence, though she had to be assisted by two or three persons. Perhaps in the belief that in view of the condition of the RP(FC):34 OF 2017 12 mother she would not be able to come to court the daughter would have to give evidence on behalf of the mother and under the mistaken belief that the daughter could not give evidence without acting as next friend that the application was drafted in that way. This complication could have been avoided. The mother herself could be the Petitioner and she could have signed the Vakalath and the petition at her own house. Alternatively the daughter could have signed and filed the application, not in any alleged capacity of next friend, but as a person having sufficient interest in the mother, the destitute. We are conscious that such a liberal interpretation of the locus standi in Section 125 of the Code is susceptible to misuse and abuse. Magistrates will have to be on their guard to ensure that judicial process is not abused by vengeful or recalcitrant persons or busybodies.
16. In view of the pronouncement of law by the Division Bench, I have no doubt in my mind that the Family Court has grossly erred in concluding that the application filed by the petitioners was not maintainable. In the case on hand, the neglected minor was the 2 nd petitioner and the 1st petitioner was his maternal grandmother. In the application, it is asserted that the 2nd petitioner is represented by his grandmother, the 1st petitioner. The grandmother can very well regarded to be a person having sufficient interest in the person neglected to move the court by an application under Section 125 of the Cr.P.C. Furthermore, in the course of proceedings, the power of attorney of the mother was also placed before court authorizing the 1st petitioner to prosecute the application for and on behalf of the minor child. The mere fact that the mother and the child were in Mumbai or that the mother was gainfully employed was not a reason RP(FC):34 OF 2017 13 to hold that the petition was not maintainable under law. The court below ought to have borne in mind that in an application filed by the wife, the provision permits the husband to take up contentions to persuade the court to deny her any sum by way of maintenance. He can adduce proof to show that she is gainfully employed and is a person who can sustain herself. He can also bring to the notice of the court that she is living an adulterous life or that she is refusing to live with the husband without any reasonable excuse. Those contentions have no reliance in a petition filed by the minor child and cannot be considered to deny maintenance to him or her. The mere fact that the mother is employed or that she would be able to sustain the minor by her earnings cannot be a justifiable reason to deny maintenance to the child. The respondent herein, as the father, has a legal as well as a moral duty to maintain his child. Maintenance under Section 125 of the Cr.P.C. cannot be construed as amount needed for bare sustenance, particularly, in the case of a dependent child, but it includes clothes, food, educational expenses etc.
17. For the aforementioned reasons, I am of the view that the order passed by the learned Family Court cannot be sustained under law. The same is set aside. The learned Family Court shall take the RP(FC):34 OF 2017 14 case back on file and adjudicate the application in accordance with law. All endeavour shall be made to dispose of the matter, as expeditiously as possible, at any rate, within a period of two months, as the original application is of the year 2012.
This petition will stand allowed.
SD/-
RAJA VIJAYARAGHAVAN V., JUDGE AVS //TRUE COPY// P.A. TO JUDGE