SHALI JOSEPH Vs. S .K. SASIKUMAR

JUDGEMENT

(1.) The revision petitioners herein are the petitioners in M.C No.151 of 2011 of the Family Court, Thiruvananthapuram. They are aggrieved by the dismissal of the said maintenance claim brought under Sec. 125 Crimial P.C., 1973 The 2nd revision petitioner was aged 19 years as on the date of claim itself. The respondent herein is the husband of the 1st revision petitioner and the father of the 2nd revision petitioner. The first revision petitioner has been fighting against the respondent for 22 years for different reliefs. It is submitted that the first in the series of litigation was filed in 1995, but it was withdrawn on the basis of some conciliation. Then came O.P.867/1997 before the Family Court for past and future maintenance. In the said proceeding, three items of properties of the respondent were attached. That attachment was challenged before this Court, and by the time, the said civil claim was decreed ex parte directing the respondent to pay maintenance to the wife and children at the rate of Rs. 1000.00 each per month. Past as well as future maintenance was awarded at the said rate. Against that decree, the respondent herein approached this Court and he also obtained stay of execution of the decree in the maintenance case. As directed by this Court as a condition an amount of Rs. 5,06,360.00 was deposited, and the said amount was withdrawn by the revision petitioners. Thereafter, this Court directed the trial court to dispose of the civil maintenance claim on merits. Accordingly, it was disposed of in 2011 directing the respondent to pay maintenance to his wife at the rate of Rs. 2000.00 per month, to the 1st child at the rate of Rs. 2500 per month till majority, and to the 2nd child at the rate of 1000.00 per month till majority. Pending such litigations, the wife and one of the children brought claim under Sec. 125 Cr.P.C , 1973as M.C 151/2011. The decree passed by the Family Court in the maintenance claim on the civil side in 2011 is now under execution and it is submitted that the respondent has not paid any amount so far in compliance of the decree except the amount of Rs. 5,06,360.00 deposited by him as ordered by this Court as a condition for permitting him to contest the maintenance claim. Thus, for the last eight years, the civil decree for maintenance stands not satisfied. This is the history and background of the case.

(2.) The respondent herein entered appearance in the maintenance claim before the Family Court and resisted the claim on the contention that in view of the civil decree granting maintenance, his wife and daughter cannot claim maintenance under Sec. 125 Crimial P.C., 1973 Accepting the said contention, the learned trial Judge dismissed the maintenance claim on 31.10.2013. The said order shows that no oral evidence was adduced by the claimants or the respondent. Before and without any evidence being recorded for a decision, the trial court just dismissed the maintenance claim on the sole ground that there is a civil decree in favour of the claimants. The said dismissal is under challenge in this revision brought under section 19(4) of the Family Courts Act.

(3.) On hearing both sides, and on a perusal of the materials, I find that the maintenance claim will have to be decided on merits by the trial court. The fact that the claimants have obtained a civil decree for maintenance; past and future, cannot at all be a legal reason to deny maintenance under Sec. 125 Crimial P.C., 1973 The settled position is that when a claim is made for maintenance on the civil side and the criminal side, the order earlier passed by the competent court can be considered by the court adjudicating the other claim. The legal position stands well settled that a maintenance claim under Sec. 125 Cr.P.C , 1973cannot be denied solely on the ground that there is a civil decree in favour of the claimants. The court will have to record evidence on both sides, examine whether the claimant is entitled to get maintenance under the law, examine the amount ordered by the civil court, examine the needs and necessities of the claimant and adjudicate whether the claimants require anything more for maintenance. If the claimants require anything more, the civil decree will not stand in the way of directing payment of maintenance under Sec. 125 Crimial P.C., 1973 Without understanding these aspects, the learned trial Judge quite mechanically dismissed the maintenance claim saying that there is a civil decree in favour of the claimants. The maintenance claim should go back to the Family Court for decision on merits after recording evidence on both sides.