The said contention was rightly rejected by the
Family Court relying on a decision of this Court in
Chathapopantavida Balan v. Chathapopantavida Devi [2009(1)
KHC 156]. It was held therein that the son could not contend that he
would pay maintenance only if the mother resides with him and that
obligation of a person having sufficient means to maintain his parent,
child or wife did not ordinarily depend on the place of residence of
such parent, child or wife. That position of law is irrefragable.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 11TH DAY OF AUGUST 2014
CHAKKINGAL ACHUTHANKUTTY NAIR
Vs
CHAKKINGAL SEETHAKUTTY AMMA,
R.P.(FC). No.79 OF 2012
Citation; 2015 CRLJ17 kerala
read original judgment here;click here
The respondents in M.C.No.1209 of 2010 on the files of the
Family Court, Malappuram are the revision petitioners and the
respondent herein was the petitioner therein. The respondent herein is
a nonagenarian with nine children including the petitioners and she
filed the M.C seeking maintenance only from the petitioners.
Admittedly, she is residing with another daughter by name Rugmini.
M.C.No.1209 of 2010 was filed claiming maintenance from each of
the revision petitioners at the rate of `5000 per month under section
125 of the Code of Criminal Procedure. The petitioner is a
nonagenarian and obviously, she approached the Family Court with
the averments that she got no means to sustain herself, that she is
suffering from dotage and various ailments and she is not in a position
to meet the expenses for her treatment on her own. Upon the rival
contentions, the Family Court formulated the points as to whether the
petitioner is entitled to get maintenance under section 125, Cr.P.C. and
if so, what should be rate, for consideration. On the side of the
revision petitioners/respondents therein, the first petitioner was
examined as RW1. No documents were produced on behalf of the
revision petitioners as also the respondent herein/the petitioner
therein. After a careful consideration of the evidence, the Family
Court arrived at the conclusion that the respondent is not having any
means or income to maintain herself and the petitioners are having
sufficient income to maintain their mother, the respondent herein. In
that view of the matter, the M.C was allowed and the revision
petitioners were directed to pay `3000 each per month to the
respondent from the date of filing of the M.C. Evidently, revision
petitioners had taken up a contention that, they would pay
maintenance and maintain their mother only if she comes and lives
with any of them. The said contention was rightly rejected by the
Family Court relying on a decision of this Court in
Chathapopantavida Balan v. Chathapopantavida Devi [2009(1)
KHC 156]. It was held therein that the son could not contend that he
would pay maintenance only if the mother resides with him and that
obligation of a person having sufficient means to maintain his parent,
child or wife did not ordinarily depend on the place of residence of
such parent, child or wife. That position of law is irrefragable.
2. The core contention of the revision petitioners is that the
Family Court had failed to take into consideration the question
whether petitioners 2, 4 and 5 herein who are the daughters of the
respondent got sufficient means of their own independently of the
means or income of their husbands while passing the impugned order
and therefore, it is liable to be interfered with. In support of the said
contention, the learned counsel for the revision petitioners relied on a
decision of the Hon'ble Apex Court in Vijaya Manohar Arbat v.
Kashirao Rajaram Sawai [1987 (2) SCC 278]. It was held that the
object of section 125 is to provide a summary remedy to save
dependents from destitution and vagrancy and to serve a social
purpose. It is the moral obligation of a son or a daughter from the
social obligation to maintain his/her parents and the expression "his
father or mother" in clause (d) of section 125(1) is not confined only
to the father or mother of the son but also to the father or mother of
the daughter and as such that expression should also be construed as
"her father or mother" in view of section 8 IPC read with section 2(y)
Cr.P.C and section 13(1) of the General Clauses Act, it was held.
Paragraphs 7 and 8 are relevant in this context and they read thus:-
7.The learned counsel, appearing on behalf of the
appellant, has urged that under clause (d) of
Section 125(1) a father is not entitled to claim
maintenance from his daughter whether married or
not. Our attention has been drawn to the use of
the pronoun 'his' in clause (d) and it is submitted
that the pronoun indicates that it is only the son
who is burdened with the obligation to maintain
his parents. Counsel submits that if the legislature
had intended that the maintenance can be claimed
by the parents from the daughter as well, it would
not have used the pronoun 'his'.
R.P.(FC).79/12 5
8.We are unable to accept this contention. It is true
that clause (d) has used the expression "his father
or mother" but, in our opinion, the use of the word
'his' does not exclude the parents claiming
maintenance from their daughter. Section 2(y) Cr
PC provides that words and expressions used
herein and not defined but defined in the Indian
Penal Code have the meanings respectively
assigned to them in that Code. Section 8 of the
Indian Penal Code lays down that the pronoun 'he'
and its derivatives are used for any person whether
male or female. Thus, in view of Section 8 IPC
read with Section 2(y) CrPC, the pronoun 'his' in
clause (d) of Section 125(1) CrPC also indicates a
female. Section 13(1) of the General Clauses Act
lays down that in all Central Acts and Regulations,
unless there is anything repugnant in the subject or
context, words importing the masculine gender
shall be taken to include females. Therefore, the
pronoun 'his' as used in clause (d) of Section 125
(1) CrPC includes both a male and a female. In
other words, parents will be entitled to claim
maintenance in favour of a father or a mother
against their married daughter, the court must
be satisfied that the daughter has sufficient
means of her own independently of the means
or income of her husband, and that the father or
the mother, as the case may be, is unable to
maintain himself or herself.
(emphasis added)
3. Thus, in view of the decision in Vijaya Manohar Arbat's
case (supra), the position regarding the moral and legal obligation of a
son or a daughter to maintain his/her parents when the father or
mother is unable to maintain himself or herself is fairly settled. The
parents are also entitled to claim maintenance from their
daughter/daughters whether married or not, provided the father or
mother is unable to maintain himself or herself. However, in respect
of such a claim it is incumbent on the court to satisfy that the married
daughter/daughters concerned got sufficient means of her/their own
independently of the means or income of her husband/ their husbands.
In this case, there is a finding to the effect that the petitioner therein/
respondent herein is unable to maintain herself. That finding is not
under challenge. The undisputed fact that she now, lives with another
daughter is no reason to hold that she is not entitled to get
maintenance. But at the same time, admittedly (as also obviously)
there is no independent consideration of the issue as to whether
respondents 2, 4 and 5 got sufficient means of their own
independently of the means or income of their husbands in the
impugned order. True that the first petitioner who mounted the box
from the side of the respondents in M.C proceedings gave evidence to
the effect that he is having income and the others are having landed
properties. Whether such lands are in the names of petitioners 2, 4
and 5 so as to hold that they are having independent means and
income? Such a consideration was not made while passing the
impugned order. In short, there is no finding that the petitioners 2, 4
and 5 are having means and income independent of their husbands
and in the absence of any consideration to make a finding in that
regard the Family Court has to consider that question. The first
petitioner who was examined as RW1 is no more. In the case of the
the third petitioner who is one of the sons of the respondent, he cannot
wriggle out of the liability to maintain his mother and rightly and
fairly at the time of hearing, the responsibility and liability to maintain
the respondent was not disputed by him though he disputed the
fixation of the quantum of maintenance. However, no ground was
made out to interfere with the quantum of maintenance fixed in
respect of the third petitioner. Therefore, I do not find any reason to
interfere with the direction of the Family Court in M.C.No.1209 of
2010 to the extent it directs the third petitioner to pay an amount of
`3,000 per month from the date of filing of the M.C to the respondent
herein. The learned counsel for the revision petitioners submitted that
pursuant to the directions of this Court on 5.11.2013, the third
petitioner has also paid certain amount towards the amount due to the
respondent herein by virtue of the order in M.C No.1209/2010. At the
same time, it is not evident as to what exactly is the amount the third
petitioner is to pay to discharge his liability under the order in the
above M.C. In such circumstances, in the pending application before
the Family Court in M.C.No.1209 of 2010, it will be open to the third
respondent to file a statement showing the amount which he had paid
for the purpose of complying with the order in M.C No.1209 of 2010.
Needless to say that he will be liable only to pay the balance amount
due after ascertaining the amount already paid by him and he shall
also continue to pay the amount of maintenance in terms of the said
order. As against the petitioners 2, 4 and 5, as already stated the
impugned order does not reflect a true consideration of the issues as to
whether they got sufficient means of their own independently of the
income of their husbands. A scanning of the order would reveal that
no specific finding has been arrived at by the Family Court on that
question. In the light of the decision in Vijaya Manohar Arbat's
case (supra), I am of the view that before ordering maintenance in
favour of a father or mother against a married daughter, the court is
bound to satisfy that the concerned daughter/daughters got sufficient
means of her/their own independent of the means or income of
her/their husband/husbands. In view of the fact that such a
consideration and specific finding is lacking in the order in
M.C.No.1209 of 2010, this matter is to be remitted back for the
purpose of such consideration and passing of fresh orders in respect of
the petitioners 2, 4 and 5. To enable the Family Court to decide that
issue, the order in the M.C to the extent it applies to petitioners 2, 4
and 5 herein is set aside. The petitioners shall produce a copy of this
judgment before the Family Court within two weeks from the date of
its receipt. Thereupon, the Family Court will consider the claim of the
respondent herein for maintenance from respondents 2, 4 and 5 as
required under law in the light of the decision in Vijaya Manohar
Arbat's case (supra). Taking into account the age of the respondent,
her requirements, respondents 2, 4 and 5 shall jointly pay an amount
of `2000 each per month for a period of four months within which
the matter has to be concluded after making a consideration of the
aforesaid issue as directed. This shall be done after affording
opportunities to petitioners 2, 4 and 5 and also the respondent.
Liability of the said petitioners to pay the arrears or to pay any amount
towards maintenance would depend upon the outcome of such
consideration and orders.
Ordered accordingly.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
Print Page
Family Court relying on a decision of this Court in
Chathapopantavida Balan v. Chathapopantavida Devi [2009(1)
KHC 156]. It was held therein that the son could not contend that he
would pay maintenance only if the mother resides with him and that
obligation of a person having sufficient means to maintain his parent,
child or wife did not ordinarily depend on the place of residence of
such parent, child or wife. That position of law is irrefragable.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
MONDAY, THE 11TH DAY OF AUGUST 2014
CHAKKINGAL ACHUTHANKUTTY NAIR
Vs
CHAKKINGAL SEETHAKUTTY AMMA,
R.P.(FC). No.79 OF 2012
Citation; 2015 CRLJ17 kerala
read original judgment here;click here
The respondents in M.C.No.1209 of 2010 on the files of the
Family Court, Malappuram are the revision petitioners and the
respondent herein was the petitioner therein. The respondent herein is
a nonagenarian with nine children including the petitioners and she
filed the M.C seeking maintenance only from the petitioners.
Admittedly, she is residing with another daughter by name Rugmini.
M.C.No.1209 of 2010 was filed claiming maintenance from each of
the revision petitioners at the rate of `5000 per month under section
125 of the Code of Criminal Procedure. The petitioner is a
nonagenarian and obviously, she approached the Family Court with
the averments that she got no means to sustain herself, that she is
suffering from dotage and various ailments and she is not in a position
to meet the expenses for her treatment on her own. Upon the rival
contentions, the Family Court formulated the points as to whether the
petitioner is entitled to get maintenance under section 125, Cr.P.C. and
if so, what should be rate, for consideration. On the side of the
revision petitioners/respondents therein, the first petitioner was
examined as RW1. No documents were produced on behalf of the
revision petitioners as also the respondent herein/the petitioner
therein. After a careful consideration of the evidence, the Family
Court arrived at the conclusion that the respondent is not having any
means or income to maintain herself and the petitioners are having
sufficient income to maintain their mother, the respondent herein. In
that view of the matter, the M.C was allowed and the revision
petitioners were directed to pay `3000 each per month to the
respondent from the date of filing of the M.C. Evidently, revision
petitioners had taken up a contention that, they would pay
maintenance and maintain their mother only if she comes and lives
with any of them. The said contention was rightly rejected by the
Family Court relying on a decision of this Court in
Chathapopantavida Balan v. Chathapopantavida Devi [2009(1)
KHC 156]. It was held therein that the son could not contend that he
would pay maintenance only if the mother resides with him and that
obligation of a person having sufficient means to maintain his parent,
child or wife did not ordinarily depend on the place of residence of
such parent, child or wife. That position of law is irrefragable.
2. The core contention of the revision petitioners is that the
Family Court had failed to take into consideration the question
whether petitioners 2, 4 and 5 herein who are the daughters of the
respondent got sufficient means of their own independently of the
means or income of their husbands while passing the impugned order
and therefore, it is liable to be interfered with. In support of the said
contention, the learned counsel for the revision petitioners relied on a
decision of the Hon'ble Apex Court in Vijaya Manohar Arbat v.
Kashirao Rajaram Sawai [1987 (2) SCC 278]. It was held that the
object of section 125 is to provide a summary remedy to save
dependents from destitution and vagrancy and to serve a social
purpose. It is the moral obligation of a son or a daughter from the
social obligation to maintain his/her parents and the expression "his
father or mother" in clause (d) of section 125(1) is not confined only
to the father or mother of the son but also to the father or mother of
the daughter and as such that expression should also be construed as
"her father or mother" in view of section 8 IPC read with section 2(y)
Cr.P.C and section 13(1) of the General Clauses Act, it was held.
Paragraphs 7 and 8 are relevant in this context and they read thus:-
7.The learned counsel, appearing on behalf of the
appellant, has urged that under clause (d) of
Section 125(1) a father is not entitled to claim
maintenance from his daughter whether married or
not. Our attention has been drawn to the use of
the pronoun 'his' in clause (d) and it is submitted
that the pronoun indicates that it is only the son
who is burdened with the obligation to maintain
his parents. Counsel submits that if the legislature
had intended that the maintenance can be claimed
by the parents from the daughter as well, it would
not have used the pronoun 'his'.
R.P.(FC).79/12 5
8.We are unable to accept this contention. It is true
that clause (d) has used the expression "his father
or mother" but, in our opinion, the use of the word
'his' does not exclude the parents claiming
maintenance from their daughter. Section 2(y) Cr
PC provides that words and expressions used
herein and not defined but defined in the Indian
Penal Code have the meanings respectively
assigned to them in that Code. Section 8 of the
Indian Penal Code lays down that the pronoun 'he'
and its derivatives are used for any person whether
male or female. Thus, in view of Section 8 IPC
read with Section 2(y) CrPC, the pronoun 'his' in
clause (d) of Section 125(1) CrPC also indicates a
female. Section 13(1) of the General Clauses Act
lays down that in all Central Acts and Regulations,
unless there is anything repugnant in the subject or
context, words importing the masculine gender
shall be taken to include females. Therefore, the
pronoun 'his' as used in clause (d) of Section 125
(1) CrPC includes both a male and a female. In
other words, parents will be entitled to claim
maintenance in favour of a father or a mother
against their married daughter, the court must
be satisfied that the daughter has sufficient
means of her own independently of the means
or income of her husband, and that the father or
the mother, as the case may be, is unable to
maintain himself or herself.
(emphasis added)
3. Thus, in view of the decision in Vijaya Manohar Arbat's
case (supra), the position regarding the moral and legal obligation of a
son or a daughter to maintain his/her parents when the father or
mother is unable to maintain himself or herself is fairly settled. The
parents are also entitled to claim maintenance from their
daughter/daughters whether married or not, provided the father or
mother is unable to maintain himself or herself. However, in respect
of such a claim it is incumbent on the court to satisfy that the married
daughter/daughters concerned got sufficient means of her/their own
independently of the means or income of her husband/ their husbands.
In this case, there is a finding to the effect that the petitioner therein/
respondent herein is unable to maintain herself. That finding is not
under challenge. The undisputed fact that she now, lives with another
daughter is no reason to hold that she is not entitled to get
maintenance. But at the same time, admittedly (as also obviously)
there is no independent consideration of the issue as to whether
respondents 2, 4 and 5 got sufficient means of their own
independently of the means or income of their husbands in the
impugned order. True that the first petitioner who mounted the box
from the side of the respondents in M.C proceedings gave evidence to
the effect that he is having income and the others are having landed
properties. Whether such lands are in the names of petitioners 2, 4
and 5 so as to hold that they are having independent means and
income? Such a consideration was not made while passing the
impugned order. In short, there is no finding that the petitioners 2, 4
and 5 are having means and income independent of their husbands
and in the absence of any consideration to make a finding in that
regard the Family Court has to consider that question. The first
petitioner who was examined as RW1 is no more. In the case of the
the third petitioner who is one of the sons of the respondent, he cannot
wriggle out of the liability to maintain his mother and rightly and
fairly at the time of hearing, the responsibility and liability to maintain
the respondent was not disputed by him though he disputed the
fixation of the quantum of maintenance. However, no ground was
made out to interfere with the quantum of maintenance fixed in
respect of the third petitioner. Therefore, I do not find any reason to
interfere with the direction of the Family Court in M.C.No.1209 of
2010 to the extent it directs the third petitioner to pay an amount of
`3,000 per month from the date of filing of the M.C to the respondent
herein. The learned counsel for the revision petitioners submitted that
pursuant to the directions of this Court on 5.11.2013, the third
petitioner has also paid certain amount towards the amount due to the
respondent herein by virtue of the order in M.C No.1209/2010. At the
same time, it is not evident as to what exactly is the amount the third
petitioner is to pay to discharge his liability under the order in the
above M.C. In such circumstances, in the pending application before
the Family Court in M.C.No.1209 of 2010, it will be open to the third
respondent to file a statement showing the amount which he had paid
for the purpose of complying with the order in M.C No.1209 of 2010.
Needless to say that he will be liable only to pay the balance amount
due after ascertaining the amount already paid by him and he shall
also continue to pay the amount of maintenance in terms of the said
order. As against the petitioners 2, 4 and 5, as already stated the
impugned order does not reflect a true consideration of the issues as to
whether they got sufficient means of their own independently of the
income of their husbands. A scanning of the order would reveal that
no specific finding has been arrived at by the Family Court on that
question. In the light of the decision in Vijaya Manohar Arbat's
case (supra), I am of the view that before ordering maintenance in
favour of a father or mother against a married daughter, the court is
bound to satisfy that the concerned daughter/daughters got sufficient
means of her/their own independent of the means or income of
her/their husband/husbands. In view of the fact that such a
consideration and specific finding is lacking in the order in
M.C.No.1209 of 2010, this matter is to be remitted back for the
purpose of such consideration and passing of fresh orders in respect of
the petitioners 2, 4 and 5. To enable the Family Court to decide that
issue, the order in the M.C to the extent it applies to petitioners 2, 4
and 5 herein is set aside. The petitioners shall produce a copy of this
judgment before the Family Court within two weeks from the date of
its receipt. Thereupon, the Family Court will consider the claim of the
respondent herein for maintenance from respondents 2, 4 and 5 as
required under law in the light of the decision in Vijaya Manohar
Arbat's case (supra). Taking into account the age of the respondent,
her requirements, respondents 2, 4 and 5 shall jointly pay an amount
of `2000 each per month for a period of four months within which
the matter has to be concluded after making a consideration of the
aforesaid issue as directed. This shall be done after affording
opportunities to petitioners 2, 4 and 5 and also the respondent.
Liability of the said petitioners to pay the arrears or to pay any amount
towards maintenance would depend upon the outcome of such
consideration and orders.
Ordered accordingly.
Sd/-
C.T. RAVIKUMAR
(JUDGE)
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