SAKEER Vs. MUHAMMED PALLIYALIL KUNHIMOHAMMED

JUDGEMENT

(1.) The above revision has been filed by the respondents, two in number, MC No. 853 of 2007 of Family Court, Malappuram, a proceeding under S.125 of the Code of Criminal Procedure, hereinafter referred to as the Code, by which they have been directed to pay maintenance at the rate of ' 2,000/- each to the petitioner in the MC / respondent herein. Petitioner in the MC is the father and the respondents, two among his three sons. Parties are hereinafter referred to as petitioners and respondents as in MC.

(2.) Maintenance awarded is not only excessive, but, the respondents, the two sons, have no means to pay the quantum of maintenance fixed, or lesser amount thereof, and, the conduct of the petitioner / father disentitle him from claiming any maintenance from his children as well, are the challenges canvassed to assail the order of the Court below. Subsequent to the passing of the order by the Court below, the father has married again is also canvassed for to contend that the claim for maintenance against the sons was without any merit. The wife of the petitioner had moved another application claiming maintenance from him alleging that he had neglected to maintain her, and on dismissal of that petition, challenge thereof is pending before this Court by way of a revision, is also canvassed for as another circumstance that the father's claim is meritless.

(3.) I heard the learned counsel on both sides. The laudable object behind S.125 of the Code is to provide succour to destitutes from those who are liable to provide maintenance to them. In considering the question of eligibility of the parents or children to claim maintenance from such persons, as under the aforesaid provision of the Code, it has to be taken note of that there is no rider as in the case of the wife, covered under sub-section (3) of the aforesaid section. So far as the wife is concerned, she has to show justifiable cause to live separately from her husband and also if an offer is made, why she refuses to cohabitate with the husband. But, in the case of children and also parents, the section does not envisage or place any such interdiction. A statutory right is conferred on parents, if they are unable to maintain themselves to claim maintenance from their son / sons, as in the case of children to make such claim against their father. So much so, the questions to be considered in the present case are whether the petitioner was unable to maintain himself, was he neglected to be maintained by the respondents - sons, and, if so, income potentiality of the sons, from whom such maintenance was claimed. The materials placed before the Court to resolve that issue consisted of the testimony of the petitioner - father as PW 1 and the power or attorney holder of the two sons as RW 1 apart from Exts. P1 to P3 on the side of the father and Ext. D1 for the sons. The learned Magistrate, on such materials placed, found the testimony of the father reliable and trustworthy to hold that he was unable to maintain himself. No material was produced to show that he is possessed of any means. Case of the father that the sons / respondents have neglected to maintain him was also found true on the evidence adduced. No infirmity is pointed out to disturb that finding formed by the Court below. Other than producing Ext. D1, which is stated to be a certified copy of an assignment deed the petitioners have not tendered any material to substantiate that the father is possessed of any means disentitling him to claim maintenance from them. Nothing has been brought to my notice to show that the property covered by Ext. D1 is capable of providing sufficient income or leave alone any income for the sustenance of the father. The two sons, from whom maintenance was claimed, are employed abroad. The learned counsel for the sons would submit that only one of them is employed abroad, and the other is presently in the country. The evidence tendered in the case persuaded the learned Judge, Family Court to hold that both of them are employed abroad. Anyhow, no material was placed before the Court below to counter the claim of the father that both sons are employed abroad. Both sons were represented by their power of attorney in the proceedings adds credence to the case of the father that they are employed abroad. When such be the case, the only question is whether there is any impropriety in the order of the Court below in fixing the quantum of maintenance at the rate of ' 2,000/-, from the sons, to be paid as maintenance to the father. The learned counsel for the petitioners has adverted to some subsequent events after passing of the order. If at all there is any change of circumstance, the Code provides for alteration or cancellation of the maintenance awarded. In considering the propriety, legality and regularity of the order passed by the Court below within the circumscription and limitation covered by the revisional jurisdiction it is inappropriate for this Court to look into any event, which is stated to have occurred after the passing of the order. I find no impropriety, whatsoever, in the impugned order passed by the learned Judge fixing the quantum of maintenance at the rate of ' 2,000/- each from the petitioners, his sons.