CHAKKINGAL ACHUTHANKUTTY NAIR Vs. CHAKKINGAL SEETHAKUTTY AMMA

JUDGEMENT

(1.) 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 Rs. 5000 per month under S. 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 S. 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 RW 1. 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 Rs. 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 KerLT 52It 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. 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 1 KerLT 574It was held that the object of S. 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 S. 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 S. 8 I.P.C. read with S. 2(y) Cr.P.C. and S. 13(1) of the General Clauses Act, it was held. Paragraphs 7 and 8 are relevant in this context and they read thus:-

(2.) Thus, in view of the decision in Vijaya Manohar Arbat's case , 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 RW 1 is no more. In the case of 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 Rs. 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 , 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, 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 . Taking into account the age of the respondent, her requirements, respondents 2, 4 and 5 shall jointly pay an amount of Rs. 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.