Sunday 30 October 2016

Whether dismissal of earlier claim for maintenance U/S 125 of CRPC would bar subsequent claim ?

 In view of the above submissions, the short

question that arises for consideration is, whether the

dismissal of the earlier claim for maintenance

allowance under Section 125 of the Cr.P.C. would bar a

subsequent claim for maintenance allowance under the

same provision.        Indisputably, the right to claim

maintenance allowance under Section 125 of the Cr.P.C.

is a recurring statutory claim. In the case of recurring

claims, the principles of res judicata or estoppel has

no application at all on a fresh cause of action or

changed circumstances. In this analysis, I hold that

the dismissal of the earlier M.C. on the evidence of

payment of maintenance allowance at that time could

not bar a subsequent claim on change of circumstances

which would give rise to a fresh cause of action. The

living standard/status of the wife and children which

spell out their ability to maintain themselves and the


means of the husband are the factors, which would

determine the entitlement of maintenance allowance

and the quantum of amount under Section 125 of the

Cr.P.C. and these factors are always fluctuating in

accordance with the change of circumstances. Needless

to say, change of circumstances will give rise to a

fresh cause of action. More over, being a claim under

social       welfare     legislation, the right to  claim

maintenance under Section 125 of the Cr.P.C. has to be

construed in view of the object of the said provision,

i.e., prevention of vagrancy and destitution. Besides,

the above view further gets assurance from Section 127

of the Cr.P.C., which recognises alteration of the

quantum         of   allowances   on  proof of change  in

circumstances.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT:

                MR.JUSTICE K.HARILAL

         1ST DAY OF JUNE 2015

                      RPFC.No. 170 of 2015 

              SANEERA,
Vs

             ABDURAHIMAN, 


         Since these revision petitions are filed

challenging   the      very      same       order     passed in

M.C.No.302/2013 on the files of the Family Court, Tirur,

by the petitioners and respondent respectively

therein, both these revision petitions are heard

together and disposed of accordingly, by a common

order.

    2. The revision petitioners in R.P(FC).No.170/2015

are the wife and daughters of the revision petitioner

in R.P(FC).No.173/2015. They filed the above M.C. under

Section 125 of the Cr.P.C. claiming maintenance

allowance from the revision petitioner in R.P(FC).

No.173/2015.   The Family Court allowed the M.C.



directing the petitioner in R.P(FC).No.173/2015 to pay

monthly         maintenance   allowance    at  the  rate  of

Rs.3,000/- to the first respondent and Rs.2,000/- each

to the second and third respondents therein. R.P(FC).

No.170/2015 is filed challenging the inadequacy of the

quantum of maintenance allowance granted under the

impugned          order  and   R.P(FC).No.173/2015 is  filed

challenging          the legality  of  the   entitlement  of

maintenance allowance and the correctness of the

quantum fixed by the court below.            The parties are

referred to as in the M.C.

      3. The petitioners, who are the wife and daughters

of the respondent, filed the above M.C. claiming

maintenance allowance under Section 125 of the Cr.P.C.

According to the first petitioner, she is the legally

wedded wife of the respondent and the petitioners 2 and

3 are the children born in the said wedlock. So, the

respondent is liable to maintain them; but he neglected

to maintain them and refused to pay maintenance



allowance.          The first petitioner has no job or any

source of income and she is unable to maintain herself

and the respondents 2 and 3; whereas, the respondent is

working abroad at Sharjah as a heavy vehicle driver

and earning Rs.1 lakh per month.          He is also having

landed property and business. So, they claimed

maintenance allowance at the rate of Rs.5,000/- each

per month.

      4. The respondent contended that the petitioners

are not entitled to get maintenance allowance on the

reason         that    earlier   M.C.No.579/2007,  claiming

maintenance under Section 125(1) of the Cr.P.C., filed by

the petitioners was dismissed by the same court. The

said dismissal of the claim will be a bar to file a fresh

M.C. seeking the very same relief. It is also contended

that he is not a heavy vehicle driver as alleged by the

petitioners and he is not getting so much amount as

claimed by them.           So, the quantum of maintenance

allowance claimed by the petitioners are exorbitant


and disproportionate with his actual income. After

considering the rival pleas and evidence let in by both

parties, the court below found that the petitioners are

entitled to get maintenance allowance notwithstanding

the dismissal of the earlier M.C.No.579/2007 claiming

similar reliefs. The respondent was directed to pay

maintenance allowance as referred above.

      5. Heard the learned counsel for the petitioners

and the learned counsel for the respondent.        The

learned counsel for the petitioners contended that the

quantum of maintenance determined by the court below

is    inadequate      to meet their  living costs  and

disproportionate with the income of the respondent.

But the learned counsel for the respondent contended

that the M.C. itself was not maintainable as the same

was      barred      by the dismissal  of  the  earlier

M.C.No.579/2007. So also, the quantum of maintenance

allowance fixed by the court below is excessive and

disproportionate with the income of the respondent.



      6. Going by the impugned order, it is seen that the

marital status of the first petitioner and the

paternity of the children are not disputed. It is the

case of the petitioners that he has neglected to

maintain         them   and refused  to pay  maintenance

allowance from 2007 onwards. Though the respondent

contended           that he  has   been maintaining  the

petitioners, the available evidence on record for this

is Ext.D3 only. It is not disputed that in the year 2007

the petitioners had filed M.C.No.579/2007 claiming

maintenance allowance from the respondent under

Section 125 of the Cr.P.C. and that the claim was

rejected on the reason that it has come out in evidence

that in the year 2007 he had sent a substantial amount

to the petitioners as maintenance allowance.         The

finding in the order dismissing M.C.No.579/2007 was that

in view of the payment of maintenance allowance

proved by the respondent, the petitioners are not

entitled        to    get further maintenance allowance.


However, the said order passed in M.C.No.579/2007 is

still under challenge in revision.

      7.     In view of the above submissions, the short

question that arises for consideration is, whether the

dismissal of the earlier claim for maintenance

allowance under Section 125 of the Cr.P.C. would bar a

subsequent claim for maintenance allowance under the

same provision.        Indisputably, the right to claim

maintenance allowance under Section 125 of the Cr.P.C.

is a recurring statutory claim. In the case of recurring

claims, the principles of res judicata or estoppel has

no application at all on a fresh cause of action or

changed circumstances. In this analysis, I hold that

the dismissal of the earlier M.C. on the evidence of

payment of maintenance allowance at that time could

not bar a subsequent claim on change of circumstances

which would give rise to a fresh cause of action. The

living standard/status of the wife and children which

spell out their ability to maintain themselves and the


means of the husband are the factors, which would

determine the entitlement of maintenance allowance

and the quantum of amount under Section 125 of the

Cr.P.C. and these factors are always fluctuating in

accordance with the change of circumstances. Needless

to say, change of circumstances will give rise to a

fresh cause of action. More over, being a claim under

social       welfare     legislation, the right to  claim

maintenance under Section 125 of the Cr.P.C. has to be

construed in view of the object of the said provision,

i.e., prevention of vagrancy and destitution. Besides,

the above view further gets assurance from Section 127

of the Cr.P.C., which recognises alteration of the

quantum         of   allowances   on  proof of change  in

circumstances.

      8. Coming to the correctness of the quantum of

amount, it is the case of the petitioners that the

respondent is getting Rs.1 lakh as a driver by

profession.          But, no evidence had been adduced to


substantiate the said claim.         On the other hand, the

respondent himself admitted that he is a driver by

profession. But he has not produced any evidence to

show that he is not getting so much amount as

contended by the petitioners. Income is a fact which

lies exclusively within the knowledge of the person

who gets it.          So, the failure to adduce sufficient

evidence to prove his exact income by the respondent

invites an adverse inference under Section 114(g) of the

Indian Evidence Act against him, i.e., the evidence

which could be and is not produced would, if produced,

be unfavourable to the person who withholds it. The

respondent has no case that he is unhealthy or

physically disabled or incapacitated to do work so as

to earn livelihood for his family. A husband is liable

to pay maintenance allowance to his wife and children

in accordance with their family status, standard of life

and day-to-day needs, and they have the right to live

with the standard of life on a par with that of


husband/father. It is seen that the petitioners 2 and 3

are school going children and a considerable amount is

required for their educational expenses also. Having

regard to the said facts, I find that the quantum of

maintenance allowance determined by the court below

is just and reasonable, warranting no interference

under the revisional jurisdiction.

      In the result, both the revision petitions are

dismissed.

                                            Sd/-
                                     K. HARILAL, JUDGE

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