P. K. Sivadasan v Jainy and Deepa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **RPFC.No.203 OF 2020** **AGAINST THE ORDER IN MC 371/2017 DATED 08-07-2019 OF FAMILY COURT,ERNAKULAM** ## **REVISION PETITIONER/RESPONDENT:** **P.K.SIVADASAN AGED 56 YEARS S/O.P.J.KOCHE, PULIMOOTTIL, BARCLAY VILLAS, CHEMPUMUKKU, KAKKANAD P.O., ERNAKULAM.** **BY ADVS. SRI.SUBAL J.PAUL SMT.SHEEBA THOMAS SMT.JOICEE BIJI JOSEPH** ## **RESPONDENTS/PETITIONERS:** **1 JAINY AGED 48 YEARS D/O.DAVID, PULIMOOTTIL, BARCLAY VILLAS, CHEMPUMUKKU, KAKKANAD P.O., ERNAKULAM. 2 DEEPA AGED 22 YEARS D/O.P.K.SIVADASAN, PULIMOOTTIL, BARCLAY VILLAS, CHEMPUMUKKU, KAKKANAD P.O., ERNAKULAM.** ## **R1-2 BY ADV. SRI.S.SACHIDANANDA PAI** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02-11-2020, THE COURT ON 18-02-2021 PASSED THE FOLLOWING:** **RPFC.No.203 OF 2020** **-:2:-** **“C.R.”** **==> picture [70 x 10] intentionally omitted <==** Dated this the 18[th] day of February, 2021 The revision on hand is filed against an order passed by Family Court, Ernakulam on 08.07.2019 in M.C. No.371 of 2017. The revision petitioner is the respondent in the M.C. 2. M.C. was filed under Section 125 Cr.P.C seeking for monthly maintenance allowance at the rate of Rs.15,000/- to the wife and Rs.10,000/- to the daughter. The Family Court has allowed the M.C and awarded monthly maintenance allowance as claimed by the petitioners. Seeking for a reversal of the order for the reasons that a valid marriage was not solemnised among the revision petitioner and the 1[st] respondent and that the 2[nd] respondent, a major, failed to establish exceptional circumstances which enable her to get maintenance allowance, under clause (c) of Sub Section (1) of Section 125 Cr.P.C. 3. The facts of the case in brief are summarised hereinbelow : For the sake of clarity, the parties to this revision will hereinafter be referred to as the respondent and the R.P.(FC) No. 203 of 2020 ## -:3:- petitioners in accordance with their status in the M.C. The respondent married the 1[st] petitioner on 28.04.1996 and the 2[nd] petitioner was born in the wedlock on 09.05.1997. The 2[nd] petitioner was doing final year degree course at St.Albert's College, Ernakulam and the respondent was employed as LPG operator in Hindustan Petroleum Corporation at its Irumpanam Unit for a salary of Rs.90,000/-. The 1[st] petitioner left the respondent's company alongwith the 2[nd] petitioner on 14.12.2014 without any valid reason and started to reside separately. The respondent then preferred O.P. No.2213 of 2015 seeking for a decree for dissolution of marriage. The 2[nd] petitioner was diagnosed with Adolescent Idiopathic Scoliosis and had availed treatment for that from Lakeshore Hospital, Ernakulam. The petitioners have no means for their sustenance and therefore seeking for Rs.15,000/- and Rs.10,000/- respectively as monthly maintenance allowance, M.C was filed before the Family Court. 4. In the counter statement filed by the respondent the status of the petitioners respectively as his wife and daughter was admitted by him. It was contended that his monthly salary is between Rs.50,000/- and Rs.55,000/-. The matrimonial home was left by the petitioners due to cruel treatment by the R.P.(FC) No. 203 of 2020 ## -:4:- respondent. The treatment and educational expenses of the 2[nd] petitioner were met by the respondent. The respondent has also to look after his aged mother and to repay dues towards the housing loan availed by him. Thus, M.C. was sought to be dismissed. 5. Before the Family Court, the 1[st] petitioner and the respondent adduced oral evidence respectively as PW1 and RW1. Ext.D1 series were also marked on the side of the respondent. The Family Court found that the 1[st] and 2[nd] petitioners are entitled to get monthly maintenance allowance from the respondent and fixed Rs.15,000/- and Rs.10,000/- respectively as the sums payable to them. The respondent has established successfully by marking Ext.D1 series in evidence that some amount has already been paid by him towards maintenance allowance during the period of consideration of the M.C. and therefore, the Family Court has directed the same to be adjusted towards the monthly maintenance allowance stands ordered by it vide the impugned order. 6. The contention of Smt.Sheeba Thomas firstly was that the cause title of the M.C itself discloses that the 1[st] petitioner is a Hindu and the respondent, a Christian by religion. According to R.P.(FC) No. 203 of 2020 -:5:- her, since one of the parties to the marriage being a non-Hindu, their marriage cannot be treated as valid under Section 5 of the Hindu Marriage Act, 1955 and the 1[st] petitioner not being the wife of the respondent is disentitled to raise a claim for monthly maintenance allowance under Section 125 Cr.P.C. 7. It is contended by Smt.Sheeba Thomas secondly that the 2[nd] petitioner in the case on hand was born on 09.05.1997 and being a major at the relevant time of filing of M.C, she must plead in the M.C and establish during trial that she is suffering from some physical or mental incapacity and for the reason, is unable to maintain herself. According to her, in the case on hand, the 1[st] petitioner has filed the claim petition seeking monthly maintenance allowance for herself and also for and on behalf of the 2[nd] petitioner. According to her, since the 2[nd] petitioner was not suffering from any mental incapacity, the petition seeking monthly maintenance allowance ought to have been filed, on her own. The pleadings in the M.C only depicts the 2[nd] petitioner as having some physical incapacity and therefore, the joinder of claims for monthly maintenance allowance of the 1[st] and 2[nd] petitioners in a single petition is improper under the law. Only if the 2[nd] petitioner is having some mental incapacity, the 1[st] R.P.(FC) No. 203 of 2020 ## -:6:- petitioner could raise the claim, in a representative capacity for and on her behalf and even in such a context, the 1[st] petitioner must be shown as represented by the 2[nd] petitioner, in her capacity as next friend. According to her, since M.C No.371/17 was filed by the 1[st] petitioner for herself and also for and on behalf of the 2[nd] petitioner, without mentioning the capacity in which the former represents the 2[nd] petitioner, the petition is only to be dismissed as not maintainable. 8. The learned counsel has contended thirdly on the basis of the admission made by the respondent about the marital status of the 1[st] petitioner in the counter statement filed in the M.C that the said admission being purely on a factual matter, it will bind the maker. But the challenge now raised being against validity of marriage, the admission made by the respondent on the status of the petitioners as wife and daughter will not bind them, it being purely a question of law. Or in other words, it cannot be held by the court on the basis of the admission of respondent on the respective status of the petitioners that they gain such a status on account of a valid marriage as contemplated under Section 5(1) of Hindu Marriage Act, 1955. The dictum in **Banarsi Das v. Kanshi** R.P.(FC) No. 203 of 2020 ## -:7:- **Ram and others** [1963 KHC 604] was relied on by the learned counsel to rest the said contention. 9. Smt.Sheeba Thomas has contended fourthly that the 2[nd] petitioner being a major at the relevant time of raising the claim for monthly maintenance allowance, unless and until she succeeds in establishing her inability to maintain herself on account of physical or mental abnormality or injury she has at the relevant time of applying for monthly maintenance allowance under Section 125 Cr.P.C, she will not be entitled to get the same from the respondent. The dictum in **Cholamarakkar and another v. Pathummamma @ Pathumma and another** [2008 (3) KHC 973] was cited by the learned counsel to support her contention. 10. Smt.Sheeba Thomas has contended fifthly that, the 2[nd] petitioner being a student of Post Graduation has every prospects to get a job and thereby to maintain herself. According to her, the Family Court failed to take notice of that aspect eventhough it has come out in evidence. 11. Smt.Sheeba Thomas has contended lastly that though a plea was not taken by her in the M.C about the validity of the marriage among the 1[st] petitioner and the respondent, it being a R.P.(FC) No. 203 of 2020 -:8:- pure question of law, can be raised firstly at the appellate stage. The dictum in **Union of India and others v. I.T.C Limited** [1993 KHC 820] was relied on to rest the said contention. 12. Sri.Sachidananda Pai, the learned counsel for the petitioners has contended on the contrary that sufficient pleadings have been raised by him in paragraph 4 of the M.C to the effect that the 2[nd] petitioner is suffering from Adolescent Idiopathic Scoliosis and that she had undergone surgery of Anterior Discectomy and fusion, posterior correction, fusion and instrumentation, at Lakeshore Hospital, Ernakulam. According to the learned counsel, a pleading was also raised in the M.C that the petitioners are unable to maintain themselves. The learned counsel has relied on **Badshah v. Urmila Badshah** [2013 KHC 4831] wherein it was held that while interpreting a Statute, the Court may not, only take into consideration the purpose for which the Statute was enacted, but also the mischief it seeks to suppress. It was further held that in a case where alternative constructions are possible, the court must give effect to that which will be responsible for the smooth working of the system for which the Statute has been enacted, rather than one, which will be a road block in its way. The court further held that if the choice is R.P.(FC) No. 203 of 2020 -:9:- between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. It was submitted by the learned counsel on the basis of the above findings that the pleadings of the petitioners in the M.C referred to supra, must be taken as sufficient to base the claim of the 2[nd] petitioner to get monthly maintenance allowance from the respondent even after becoming major. ## 13. **T.Muraleedharan v. C. Vijayalakshmi** [2006 KHC 868] was also relied on by the learned counsel to rest his contention that, qualification of a woman is not sufficient to hold that she is able to maintain herself. The dictum in **Yousuff v. Nafeesakutty and others** [2020 (1) KHC 502] was also relied on by the learned counsel to contend that the High Court while exercising revisional jurisdiction is not empowered to reassess evidence and substitute it with its own finding, particularly on factual findings on marriage and parentage of child. 14. The rival arguments advanced, are tested on the basis of the evidence on record and dictums of various courts relied on by the parties to ascertain the merits involved. The question that the 1[st] petitioner being a non-Hindu, the alleged marriage which bonded them together is not a valid marriage under Section 5 of R.P.(FC) No. 203 of 2020 -:10:- the Hindu Marriage Act, 1955, undoubtedly, is purely a question of law and as rightly pointed out by the learned counsel for the respondent, it could be raised for the first time in the appeal as held in **Cholamarakkar** supra. But, the proceedings of the Family Court under Section 125 Cr.P.C and the order passed therein being under challenge in the revision, whether the consideration of such question is relevant or not is the prime point to be dealt with. 15. In the M.C filed, a specific pleading was raised by the 1[st] petitioner that she is the wife of the respondent following a marriage solemnized at SNDP Gurumandiram, Mundakkayam, Kottayam on 28.04.1996 and the 2[nd] petitioner was born to them on 09.05.1997. The respondent in paragraph 3 of the objection filed in the M.C has admitted the solemnization of marriage between himself and the 1[st] petitioner on 28.04.1996 at SNDP Gurumandiram, Mundakkayam, Kottayam and birth of the 2[nd] petitioner in the marriage on 09.05.1997. On the basis of the admission, the Family Court was convinced of the status of the 1[st] petitioner as the wife of the respondent and 2[nd] petitioner, the child and thereby determined the former's entitlement to get monthly maintenance allowance from the respondent. It has been held by the Apex Court in **Pyla Mutyalamma@ Satyavathi** R.P.(FC) No. 203 of 2020 -:11:- **v.Pyla Suri Demudu and Another** [2011 (3) KLT 815] that if the evidence available on record in a proceeding under Section 125 Cr.P.C raises a presumption on the status of the claimant as wife of the respondent, it would be sufficient for the Court to pass an order granting monthly maintenance allowance in her favour. In the case on hand, the 1[st] petitioner has pleaded in the petition seeking maintenance allowance that she is the wife of the respondent consequent to a marriage solemnized on 28.04.1996 at SNDP Gurumandiram, Mundakkayam, Kottayam and oral evidence in tune with was also adduced by her as PW1. The respondent did not controvert the said evidence, but admitted the same during examination as RW1. Therefore, evidence on record in the M.C was sufficient to convince the court that the parties thereto were related as husband and wife by a marriage solemnized on 28.04.1996. Therefore, as held by the Apex Court in **Pyla Mutyalamma@ Satyavathi** supra it was established in the proceedings under Section 125 Cr.P.C by convincing evidence that the 1[st] petitioner holds the status of wife of the respondent and on its basis, the Family Court has passed the impugned order granting monthly maintenance allowance in her favour. R.P.(FC) No. 203 of 2020 -:12:- 16. The validity of a marriage undoubtedly is a question of law but it is out of concern of the Family Court while exercising jurisdiction under Section 125 Cr.P.C. It is within the realm of a civil court to adjudicate it. True that a Family court exercising jurisdiction under Section 125 Cr.P.C will be bound by a decree passed by a Civil Court on validity of marriage among the parties. But, Family Court cannot on it's own, adjudicate that question of law in a petition seeking monthly maintenance allowance under Section 125 Cr.P.C., since it does not call for consideration in that context. Questions relevant for consideration for a Family Court exercising jurisdiction under Section 125 Cr.P.C is, whether the claimant holds the status of wife of the respondent or legitimate or illegitimate child of the respondent at the relevant time of raising the claim and those are pre-eminently questions of fact. From the evidence adduced by the parties in a proceedings under Section 125 Cr.P.C, if a presumption is possible to be drawn by the court, that would suffice for a consideration of entitlement of the claimant for monthly maintenance allowance under Section 125 Cr.P.C. As held by the Apex Court in **Pathumma and another v. Muhammad** [(1996) 2 SCC 585] supra, the question of factum of marriage and status of parties if stand answered by the Family R.P.(FC) No. 203 of 2020 -:13:- Court affirmatively and such finding when viewed in the light of the evidence available on its record is a justifiable one, the High Court exercising revisional jurisdiction under Section 401 Cr.P.C is not empowered to substitute the findings of the Family Court with that of its own. In that backdrop the argument advanced by the learned counsel for the respondent on validity of marriage, being irrelevant for consideration in the context is repelled. The grant of monthly maintenance allowance by the impugned order in favour of 1[st] petitioner does not call for interference in the above circumstances. 17. It is provided under Clause (c) of sub-section (1) of Section 125 Cr.P.C as follows : ## “ **125. Order for maintenance of wives, children and parents** (1) If any person having sufficient means neglects or refuses to maintain - xx xx xx (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or ” As the Section provides, a legitimate or illegitimate child of the respondent other than a married daughter, who has attained R.P.(FC) No. 203 of 2020 ## -:14:- the age of majority is entitled to get monthly maintenance allowance on proving that he or she, by reason of any physical or mental abnormality or injury suffered by her, is unable to maintain himself/herself. Therefore, for being entitled to claim monthly maintenance allowance, a major legitimate or illegitimate child, is required to plead and establish by evidence that he or she is having physical or mental abnormality or injury and in view of that, is unable to get/do any job to earn income and thereby maintain itself. 18. It has been contended by the learned counsel for the petitioners that Section 125 Cr.P.C having been enacted and incorporated into the Code of Criminal Procedure by the Parliament with the sole aim to prevent destitution and vagrancy, the court shall not decline the claim for monthly maintenance allowance for the simple reason that precise pleadings are lacking in the petition, instead, shall adopt a social context adjudication. According to him, the petitioner has pleaded at one part of the petition seeking monthly maintenance allowance that she is suffering from Adolescent Idiopathic Scoliosis and had availed treatment for that from Lakeshore Hospital, Ernakulam, and in a different part of it, that she is unable to maintain herself. The 2[nd] R.P.(FC) No. 203 of 2020 -:15:- petitioner being a major and physical ailment having been claimed as an exceptional circumstance to maintain her claim for monthly allowance, specific pleadings in that regard must be projected by her in the petition. In the petition on hand seeking monthly maintenance allowance, pleadings have not been raised by the 2[nd] petitioner whose mental condition is stable, on her own, but by the 1[st] petitioner for and on behalf of her and that too not precisely as demanded by Clause (c) of Sub-Section (1) of Section 125 Cr.P.C. 2[nd] petitioner being not a minor and not suffering from any mental incapacity, 1[st] petitioner has no _locus standi_ to raise a claim for maintenance allowance for and on her behalf. The 2[nd] petitioner being a major and physical incapacity alone being projected as the reason for her inability to earn income and maintain herself, claim for maintenance allowance ought to have been made by herself. For a claim for monthly maintenance allowance under Clause (c) of Sub-Section (1) of Section 125 Cr.P.C to sustain, the 2[nd] petitioner as claimant must plead and establish her physical incapacity which stands in her way to earn income and maintain herself. 19. The Apex Court in paragraph 8 of **Cholamarakkar** supra, has observed : ## R.P.(FC) No. 203 of 2020 ## -:16:- “8. xx xx xx We find that the question was considered by a Single Bench of this Court in _Muhammed v. Kunhayisha_ 2003 KHC 1076 : 2003 (2) KLJ 629 : 2003 (3) KLT 106 wherein it has been rightly held as follows : “xx xx xx Under Section 125 Cr.P.C a major unmarried daughter is not entitled to claim maintenance from her parents unless her inability to maintain herself is attributable to her physical or mental abnormality or injury and that her mere status as an unmarried daughter whatever be her religion does not entitle her to claim maintenance under Section 125 Cr.P.C.” ## Accordingly it was held by the Court in paragraph 11 that: “11. The next question to be analysed, in the facts as pleaded in the claim for maintenance, is whether the second petitioner is entitled to claim maintenance. As we have already stated above, unless it is established that the inability to maintain herself is on account of the physical or mental abnormality or injury, she will not be entitled to claim maintenance. From the pleadings, we find that more stress is given to the mental injury leading to the situation of the child remaining unmarried, on account of the dispute on paternity. That is not the requirement. Unless it is pleaded and established before the Court that on account of such mental injury, the child is unable to maintain itself, she cannot maintain a valid claim before the Court for maintenance. Since the Family Court has not addressed the issues in the proper perspective, we set aside the order in MC No.413/2002 and remit the matter to the Family Court for fresh consideration, in accordance with law. We make it clear that it will be open to the parties to amend the pleadings and adduce fresh evidence.” (Emphasis supplied) R.P.(FC) No. 203 of 2020 ## -:17:- Therefore, the applicant seeking for the relief under a particular provision must plead and establish that the exceptional circumstances which entitles her to claim monthly maintenance allowance, exist in his/her case. He/she cannot evade from raising a plea in particular and establishing it, stating that Section 125 Cr.P.C being a beneficial legislation, intention of the party claiming it must be gathered by the Court from the evasive pleadings available in her petition by resorting to a purposive interpretation. 20. In the case on hand, the petition seeking monthly maintenance allowance suffers for the reason that despite attainment of the age of majority by the 2[nd] petitioner and not being affected with mental incapacity, the claim for monthly maintenance has been raised by her mother for and on her behalf. Law does not recognise raising of such a claim by a person for and on behalf of a major and mentally sound person. The 2[nd] petitioner being a major with physical incapacity, the petition seeking monthly maintenance allowance ought to have been filed by her own, raising specific pleas in tune with Clause (c) of subsection (1) of Section 125 Cr.P.C. The pleadings in the M.C sought to be relied on by the learned counsel for the petitioners are only of evasive nature and therefore, insufficient to sustain a claim for R.P.(FC) No. 203 of 2020 -:18:- monthly maintenance allowance under Clause (c) of sub-section (1) of Section 125 Cr.P.C. In view of **Cholamarakkar** supra, for a claim for monthly maintenance allowance under Clause (c) of subsection (1) of Section 125 Cr.P.C to sustain, specific pleadings must be raised by the 2[nd] petitioner and cogent evidence must be adduced to establish those. 21. The argument advanced by the learned counsel for the respondent that the 2[nd] petitioner being educated, chances are there for her to get employment in future and therefore her claim on inability to get a job and to maintain herself ought to have been repelled by the Family Court, is untenable in view of the dictum in **T.Muraleedharan** supra that qualification of a lady is not sufficient to hold that she is able to maintain herself. Therefore, it is discarded by this Court. 22. The M.C., in so far as it relates to the claim for monthly maintenance allowance of the 2[nd] petitioner, suffers for want of specific pleadings. The Family Court ought not to have allowed the M.C and passed the impugned order to the extent of granting maintenance allowance in favour of the 2[nd] petitioner for the reason stated above. It is indicated from the pleadings available in the M.C that the 2[nd] petitioner is a major and suffers from R.P.(FC) No. 203 of 2020 -:19:- some physical disorder. It is also indicated that she is unable to maintain herself. Therefore, prima facie it appears that she could raise a claim under Clause (c) of sub-section (1) of Section 125 Cr.P.C. Therefore, it is expedient in the interest of justice that an opportunity be granted to her to raise her claim in appropriate manner as discussed above. In the result, the revision is allowed in part. The impugned order to the extent, it grants monthly maintenance allowance to the 2[nd] petitioner and issues direction to the respondent to pay it, is set aside. M.C, to the extent it raises a claim for monthly maintenance allowance by the 1[st] petitioner for and on behalf of the 2[nd] petitioner is dismissed with liberty being reserved to the 2[nd] petitioner to file a separate application under clause (c) of Sub Section (1) of Section 125 Cr.P.C incorporating specific pleadings to the extent directed by the dictum in **Cholamarakkar** and to adduce cogent evidence to establish those. The respondent shall be granted with reasonable opportunity to cross examine the 2[nd] petitioner. On such a petition being filed by the 2[nd] petitioner, the Family Court shall proceed to adjudicate it in accordance with the law and the procedure prescribed, for the purpose. The maintenance claim raised by the 2[nd] petitioner shall be considered R.P.(FC) No. 203 of 2020 -:20:- and disposed of within a period of three months from the date on which it is preferred. The M.C to the extent it grants monthly maintenance allowance to the 1[st] petitioner is maintained. Sd/- ## **MARY JOSEPH, JUDGE** ttb