Crl.M.C.206/2022 & O.P.(Crl.)74/2022

Crl.M.C.206/2022 & O.P.(Crl.).74/2022 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19[TH] DAY OF MAY 2023 / 29TH VAISAKHA, 1945** **OP(CRL.) NO. 74 OF 2022 AGAINST THE ORDER/JUDGMENT IN MC 123/2020 OF FAMILY COURT,** **ALAPPUZHA** ## **PETITIONER/PETITIONER:** 1 KRISHNA KUMARI, AGED 47 YEARS RADHA NIVAS, KUTHIRAPANTHI WARD, THIRUVAMPADI P.O, ALAPPUZHA., PIN - 688002 2 AHALYA.S, AGED 14 YEARS RADHA NIVAS, KUTHIRAPANTHI WARD, THIRUVAMPADI P.O, ALAPPUZHA. MINOR REPRESENTED BY KRISHNA KUMARI AGED 47 YEARS, DAUGHTER OF PONNAPPAN NAIR, RADHA NIVAS, KUTHIRAPANTHI WARD, THIRUVAMPADI P.O, ALAPPUZHA, PIN - 688002 BY ADVS. BIMALA BABY BLAISE JOSEPH SOORAJ R ## **RESPONDENT/RESPONDENT:** SUBRAMANYAN, AGED 55 YEARS ASWATHI NIVAS, KUTHIRAPANTHI WARD, THIRUVAMBADI P.O, ALAPPUZHA NOW WORKING AS NURSING ASSISTANT, SUPERINTENDENT OFFICE, GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM 695011, PIN - 695011 BY ADVS. PRIYADARSAN THAMPI G R.RAJENDRA PRASAD(K/1303/2001) SRI. RENJITH GEORGE, SR.PP. THIS O.P.(CRIMINAL) HAVING COME UP FOR ADMISSION ON 14.03.2023, ALONG WITH Crl.MC.206/2022, THE COURT ON 19.05.2023 DELIVERED THE FOLLOWING: Crl.M.C.206/2022 & O.P.(Crl.).74/2022 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19[TH] DAY OF MAY 2023 / 29TH VAISAKHA, 1945** **CRL.MC NO. 206 OF 2022** **AGAINST THE ORDER IN CRMP 133/2021 IN MC 123/2020 OF FAMILY COURT, ALAPPUZHA** ## **PETITIONER/RESPONDENT:** SUBRAMANYAN AGED 54 YEARS S/O. VISWANATHA PANICKER, ASWATHI NIVAS, KUTHIRAPANTHI WARD, THIRUVAMBADI P.O, ALAPPUZHA - PIN - 688012. BY ADV G.PRIYADARSAN THAMPI ## **RESPONDENTS/PETITIONERS & STATE:** 1 KRISHNAKUMARI, AGED 46 YEARS D/O. PONNAPPAN NAIR, RADHA NIVAS, KUTHIRAPANTHI WARD, THIRUVAMBADI P.O, ALAPPUZHA - 688012. 2 AHLYA S, AGED 13 YEARS D/O. SUBRAMANYAN (MINOR), REPRESENTED BY HER MOTHER KRISHNAKUMARI, AGED 46 YEARS, D/O. PONNAPPAN NAIR, RADHA NIVAS, KUTHIRAPANTHI WARD, THIRUVAMBADI P.O, ALAPPUZHA - 688012. 3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031. SR.PP SRI. RENJITH GEORGE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.03.2023, ALONG WITH OP(Crl.).74/2022, THE COURT ON 19.05.2023 PASSED THE FOLLOWING: Crl.M.C.206/2022 & O.P.(Crl.).74/2022 3 ## **[OP(Crl.) Nos.74/2022, 206/2022]** Dated this the 19[th] day of May, 2023 ## **ORDER** The Crl.M.C. is filed seeking to quash Annexure A2 order passed in M.C. No. 123 of 2020 by the Family Court, Alappuzha directing the petitioner to pay interim maintenance to his child at the rate of Rs.2,000/- per month. The Original Petition is filed by the child represented by her mother, dissatisfied with the quantum of interim maintenance ordered. 2. The essential facts are as under; For convenience, the parties and documents are referred as described in the Crl.M.C. The marriage between the petitioner and the 1[st] respondent was solemnized on 31.08.2006 and the 2[nd] petitioner was born on 22.06.2008. Matrimonial discord among the spouses resulted in the 1[st] respondent and the child residing separately from 05.01.2009 onwards. The dispute also resulted in the 1[st] respondent approaching the Crl.M.C.206/2022 & O.P.(Crl.).74/2022 4 Family Court for dissolution of marriage, return of gold ornaments and money and maintenance for herself and the child. Pending those cases, the parties came to an amicable settlement and Annexure A5 compromise petition was filed in the Maintenance Case filed by the 1[st] respondent. Based on the compromise, the maintenance case was closed and the marriage dissolved on mutual consent. Later, the 1[st] respondent filed M.C. No. 109 of 2012 claiming maintenance allowance for the 2[nd] respondent. By Annexure A7 order, the Family Court dismissed the maintenance case finding the claim to be unjustified, since the 1[st] petitioner had obtained a lump sum towards maintenance of herself and the child. Annexure A7 order was not challenged by the respondents. Instead, M.C. No. 123 of 2020 was filed later, claiming maintenance for the 2[nd] respondent at the rate of Rs.10,000/- per month. The learned Judge, after taking note of the earlier litigations and compromise, ordered maintenance at the rate of Rs.2,000/- per month. Crl.M.C.206/2022 & O.P.(Crl.).74/2022 5 3. Learned counsel for the petitioner contended that the impugned order is barred by _res judicata_ in view of the earlier order dismissing M.C. No. 109 of 2012. 4. Learned counsel for the respondents contended that the principle of _res judicata_ is not applicable to proceedings under Section 125 Cr.P.C. To buttress the contention, the decisions in **Nanu v. Vasantha** (1984 KLT 382) and **Narayana Kurup v. Valsala** (2005 (2) KLT 199) were relied on. It is argued that a father's obligation to maintain his child being statutory in nature, the parents cannot contract out of the obligation. The decision in **Abubacker v. Katheesa** (1961 KLT 581) is pressed into service to support the contention. 5. As per Section 125 Cr.P.C., if any person having sufficient means neglects or refuses to maintain his child, the competent court can, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of the child. In the case at hand, paternity and petitioner's salary of more than Rs.35,000/-, are admitted. Indisputably, the 1[st] respondent cannot Crl.M.C.206/2022 & O.P.(Crl.).74/2022 6 maintain the child with the meagre income of Rs. 8,000/per month. As such the petitioner is liable to maintain the child. 6. To get over his liability, the petitioner has raised a contention that the present claim is barred by the principles of _res judicata_ and issue estoppel. Annexure A7 order reveals that the earlier maintenance case was dismissed for the reason that the mother had received a lumpsum towards maintenance. Going by the dictum laid down in **Abubacker** (supra), rejection of the earlier claim is patently illegal, since the parents cannot contract out of the statutory obligation to maintain the child. Be that as it may, the legality of that order cannot be considered now, the same having attained finality in the absence of any challenge. 7. No doubt, the principles of issue estoppel and _res judicata_ are applicable to criminal proceedings. But the position is different when it comes to proceedings under Section 125 Cr.P.C. The very purpose of Section 125 Cr.P.C. is to ensure payment of monthly maintenance Crl.M.C.206/2022 & O.P.(Crl.).74/2022 7 allowance by a parent having sufficient means pays monthly allowance to a neglected child, unable to maintain itself. Being so, acceptance of lump sum payment by the mother and dismissal of an earlier claim for maintenance, cannot stand in the way of the minor child claiming maintenance. The doors of justice cannot be closed permanently to a minor child on the ground that a claim for maintenance made on its behalf was rejected by the court earlier. In **Nanu** (supra) and **Narayana Kurup** (supra), this Court held subsequent applications to be maintainable, even though the earlier application had been dismissed on merits. Even though the reason for rendering that finding was the change of status of the wife from 'a wife unable to maintain herself' to 'a divorced wife', the dictum laid down in those decisions lend support to the view that a settlement arrived by the parents or dismissal of an earlier claim based on the settlement will not stand in the way of the Family Court considering the subsequent claim made by the minor child unable to maintain itself. Crl.M.C.206/2022 & O.P.(Crl.).74/2022 8 For the aforementioned reasons, Crl.M.C. No. 206 of 2022 is dismissed. As the Family Court had considered all relevant aspects while fixing the quantum of maintenance and Annexue A2 being only an interim order, O.P.(Crl.) No. 74 of 2022 is also rejected. It is for the Family Court to render final decision in the maintenance case based on the evidence tendered by the parties. Sd/- **V.G.ARUN JUDGE** sb Crl.M.C.206/2022 & O.P.(Crl.).74/2022 9 ## **APPENDIX OF CRL.MC 206/2022** |PETITIONER ANNEXURES|| |---|---| |Annexure A1|TRUE COPY OF THE M.C. NO. 123/2020 FILED BY| ||THE RESPONDENTS 1 & 2 HEREIN BEFORE FAMILY| ||COURT, ALAPPUZHA.| |Annexure A2|CERTIFIED COPY OF THE ORDER DATED 27.11.2021| ||IN CRIMINAL M.P NO.133/2021 IN M.C. NO.| ||123/2020 OF FAMILY COURT, ALAPPUZHA.| |Annexure A3|TRUE COPY OF THE PETITION DATED 6.1.2009| ||FILED BY THE 1ST RESPONDENT BEFORE THE| ||PROTECTION OFFICER, ALAPPUZHA.| |Annexure A4|TRUE COPY OF THE O.P NO. 155/2009 FILED BY| ||THE 1ST RESPONDENT BEFORE FAMILY COURT,| ||ALAPPUZHA.| |Annexure A5|TRUE COPY OF THE COMPROMISE AGREEMENT ENTERED| ||BETWEEN THE PARTIES ON 20.01.2010 IN M.C. NO.| ||3/2009 OF JUDICIAL FIRST CLASS MAGISTRATE| ||COURT, ALAPPUZHA.| |Annexure A6|TRUE COPY OF THE M.C. NO. 109/2012 FILED BY| ||THE RESPONDENTS 1 & 2 BEFORE THE FAMILY| ||COURT, ALAPPUZHA.| |Annexure A7|TRUE COPY OF THE ORDER DATED 8.2.2013 IN M.C.| ||NO. 109/2012 OF FAMILY COURT, ALAPPUZHA.| Crl.M.C.206/2022 & O.P.(Crl.).74/2022 10 ## **APPENDIX OF OP(CRL.) 74/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE M.C BEARING M.C NO. 123/2020 DATED 05/10/2020 ON THE FILES OF THE FAMILY COURT, ALAPPUZHA. Exhibit P2 TRUE COPY OF THE CRL.M.P NO. 133/2021 IN M.C NO. 123/2020 ON THE FILES OF HON'BLE FAMILY COURT, ALAPPUZHA Exhibit P3 TRUE COPY OF THE ORDER DATED 27/11/2021 IN CRL.M.P NO. 133/2021 IN M.C NO. 123/2020 ON THE FILES OF HON'BLE FAMILY COURT, ALAPPUZHA