Rajesh v Lincy and Niveditha (Minor) through mother Lincy

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 ``` ## **`RPFC NO. 185 OF 2021`** ``` AGAINST THE ORDER DATED 31.07.2018 IN M.C.NO.60/2016 OF FAMILY ``` ## **`COURT, IRINJALAKUDA`** ## **`PETITIONER/RESPONDENT:`** ``` RAJESH, AGED 37 YEARS S/O.PERINGATT VEETTIL SUBRAMANIAN, MADATHUMPADY DESOM, VILLAGE, MADATHUMPADY P.O., KODUNGALLUR TALUK-680 733. ``` ``` BY ADVS.SRI.S.VINOD BHAT SMT.GREESHMA CHANDRIKA.R SMT.ANAGHA LAKSHMY RAMAN ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1LINCY, AGED 31 YEARS, W/O.PERINGATT VEETTIL RAJESH, MADATHUMPADY DESOM, VILLAGE, MADATHUMPADY P.O., KODUNGALLUR TALUK-680 733, D/O.PERINGATT VEETTIL SAJEEVKUMAR, AZHIKODE DESOM, AZHIKODE P.O., AZHIKODE VILLAGE, KODUNGALLUR TALUK-680 666. ``` ``` 2NIVEDITHA,MINOR, AGED 4 YEARS, REP. BY MOTHER AND CLOSE RELATIVE LINCY, D/O.PERINGATT VEETTIL SAJEEVKUMAR, AZHIKODE DESOM, AZHIKODE VILLAGE, AZHIKODE P.O., KODUNGALLUR TALUK-680 666. ``` ``` BY ADV SRI.N.L.BITTO ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22.09.2021, THE COURT ON 25.05.2022 PASSED THE FOLLOWING: ``` RP(FC) No.185 of 2021 2 “C.R” ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - R.P.(F.C.) No.185 of 2021 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of May, 2022 This revision petition is filed challenging an order passed by Family Court, Irinjalakuda on 31.07.2018 in M.C.No.60/2016. The revision petitioner is the respondent in the M.C and the respondents are petitioners therein. Parties to this revision will hereinafter be referred to as the petitioners and the respondent in accordance with their status in the original M.C. 2. M.C.No.60/2016 is an application filed under Section 125(1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) claiming monthly maintenance allowance at the rate of Rs.5,000/to each of the petitioners. Before the Family Court, both parties adduced evidence. The petitioner was examined as PW1 and Exts.P1 to P4 series were marked. The respondent was examined as RW1 and Exts.B1 and B2 were marked. The Family Court appreciated the above evidence and passed an order directing the respondent to pay monthly maintenance allowance at the rate of Rs.4,000/- and Rs.3,000/- respectively to petitioners 1 & 2. The Family Court has directed the monthly maintenance allowance RP(FC) No.185 of 2021 3 ordered to be paid from the date of the petition. Interim maintenance allowance paid was also ordered to be adjusted while arriving at the arrears outstanding as payable and the 1[st] petitioner as the guardian and the next friend of the 2[nd] petitioner was authorized to receive it on behalf of her. Aggrieved by the order above, the respondent has approached this Court in the revision on hand. 3. The contentions were raised in the revision petition that the impugned order is not legally sustainable and that the court below has not appreciated the evidence adduced in its correct perspective. According to the learned counsel, the evidence that the 1[st] petitioner was earning sufficient income from her job as a temporary teacher has been overlooked by the Family Court while awarding monthly maintenance allowance at the rates stated above. 4. Though the above grounds are raised in the revision petition, the learned counsel for the revision petitioner submitted during argument that the challenge is confined to the direction issued by the Family Court to the respondent to pay the sum ordered as monthly maintenance allowance from the date of the petition. RP(FC) No.185 of 2021 4 5. The learned counsel has cited Jaiminiben Hirenbhai Vyas and another vs. Hirenbhai Rameshchandra Vyas and another [(2015) 2 SCC 385] to submit that the Family Court is empowered to order payment of monthly maintenance allowance either from the date of the order or from the date of the petition and in either case, it has to record its reasons for doing so as directed by Section 354(6) Cr.P.C. “The purpose of Section 125 CrPC is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of the particular case. Section 125 CrPC requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per Section 354(6)CrPC, the court should record reasons in support of the order passed by it, in both eventualities” 6. According to the learned counsel, a co-equal Bench of the Apex Court in Rajnesh v Neha and Another [2020 (6) KHC 1 (SC)] has issued a direction to all Family Courts in the State to the following effect: RP(FC) No.185 of 2021 5 "We make it clear that maintenance in all cases will be awarded from the date of filing of the application for maintenance." It is submitted by the learned counsel that the Apex Court while holding as above, overlooked the dictum of a Bench of co-equal strength in Jaiminiben supra and therefore the court below ought not to have followed the same to hold that petitioners in M.C. No.60/2016 are entitled to get the monthly maintenance allowance stands ordered in their favour from the date of the petition. According to the learned counsel, the Apex Court in Rajnesh supra has not considered the law declared by it in Jaiminiben supra, to the effect that the Family Court has the authority to order payment of monthly maintenance allowance from the date of the order or from the date of the petition. 7. True that in Jaiminiben supra, the Apex Court has declared the law under Article 141 of the Constitution of India that whichever be the date from which the monthly maintenance allowance ordered is payable, Family Court shall record reasons. But, in Rajnesh supra the jurisdiction under Article 142 of the Constitution of India was exercised by the Apex Court with a view to maintain parity in the matter of payment of monthly RP(FC) No.185 of 2021 6 ## maintenance allowance. Article 142 of the Constitution of India is apposite to be extracted hereunder: “ 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.” The jurisdiction under Article 142 is meant to be exercised by the Supreme Court for doing complete justice in any cause or matter pending before it. Therefore the jurisdiction under Article 142 is meant to supplement the existing legal frame work and for rendering complete justice among the parties. The exercise of jurisdiction under Article 142 is not meant to supplant the existing legal position but to supplement something to settle the situations liable to work out disparity and to discriminate the stakeholders. RP(FC) No.185 of 2021 7 8. In Rajnesh supra the Apex Court has noticed that in the absence of a uniform regime there is vast variance in the practice adopted by the Family Courts in the country with regard to the date from which maintenance allowance shall be awarded. The Court also noticed that divergent views have been taken by different Family Courts regarding the date from which the monthly maintenance allowance ordered is payable. Some courts were found to have ordered the payment of monthly maintenance allowance from the date of application, some others, from the date of the order and certain others, from the date of service of summons. According to the Court the disparity resulted from passing of orders by Family Courts in different manners has to be tackled and accordingly that direction has been issued, exercising jurisdiction under Article 142 of the Constitution to all Family Courts in the form of a guideline, to pass orders granting monthly maintenance allowance from the date of the application in all cases. Uniformity is sought to be achieved by issuing such a direction. The above direction cannot be said to have been issued to supplant the legal provision but only to supplement the position of law existing with a view to bring complete justice. The RP(FC) No.185 of 2021 8 argument advanced by the learned counsel that by issuing such a guideline, the Apex Court in Rajnesh has overlooked the ratio laid down by another co-equal Bench in Jaiminiben supra and thereby the dictum in Rajnesh is per incuriam, is discarded, being untenable. All Family Courts are bound by the direction issued by the Apex Court in Rajnesh supra. The Family Court in the case on hand, therefore is justified in directing the payment of monthly maintenance allowance from the date of the petition. R.P.(F.C) fails for the reasons and is dismissed. Sd/- MARY JOSEPH JUDGE NAB