RPFC Nos. 61 & 170/2024, High Court of Kerala

RPFC Nos.61 & 170/2024 ``` 2025:KER:30864 ``` ``` :1: IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` **==> picture [58 x 57] intentionally omitted <==** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH ``` ``` THURSDAY, THE 10[TH] DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 ``` ``` RPFC NO. 61 OF 2024 ``` ``` AGAINST THE ORDERS IN MC NO.119/2019 DATED 27/12/2023 AND CRL.M.P.NO.647/2023 IN MC NO.119/2019 DT 18/12/2023 OF FAMILY COURT, CHAVARA ``` ## **`REVISION PETITIONER/PETITIONER:`** ``` DHANAPAL, AGED 55 YEARS S/O KUNJUPILLAI VAIDYAN, VALIYATH VADAKKATHIL,CHANAGANKULANGARA, OACHIRA, KARUNAGAPPALLY,KOLLAM, PIN: 690526, PIN - 690526 ``` ``` BY ADVS. V.PREMCHAND HALIYA T.P. MAHADEV M.J. ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1SUBHADHRA BHARGAVAN AGED 68 YEARS W/O BHARGAVAN BHARGAVA MANDIRAM,PUTHUPPALLY NORTH P O, KAYAMKULAM,ALAPPUZHA,, PIN - 690527 ``` ``` 2MISHKA DHANAPALAN, AGED 18 YEARS S D CHARISMA, FLAT NO 401,4TH FLOOR, NEAR GOMES AR TEMPLE,SASMOLLEM, BAINA, VASCO DE GAMA, GOA, PIN-403802., PIN - 403802 ``` ``` BY ADVS. ROSY P. F. SNEHA RAJIV(K/001710/2018) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 7.04.2025, ALONG WITH RPFC.170/2024, THE COURT ON 10.04.2025 DELIVERED THE FOLLOWING: ``` RPFC Nos.61 & 170/2024 ``` 2025:KER:30864 ``` ``` :2: ``` **==> picture [58 x 57] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH ``` ``` THURSDAY, THE 10[TH] DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 ``` ``` RPFC NO. 170 OF 2024 ``` ``` AGAINST THE ORDER IN MC NO.119/2019 DATED 27/12/2023 OF FAMILY COURT, CHAVARA ``` ## **`REVISION PETITIONERS/PETITIONERS:`** - **`1 SUBHADRA BHARGAVAN AGED 70 YEARS W/O BHARGAVAN, BHARAGAVA MANDIRAM, PUTHUPPALLY NORTH P.O., KAYAMKULAM., PIN - 690527`** ``` 2MISHKA DHANAPAL AGED 19 YEARS D/O DHANAPALAN S, S D CHARISMA FLAT NO. 401 FORTH FLOOR NEAR GOMTESHWAR TEMPLE VASCO DA GAMA, GOA 403802 NOW RESIDING AT, BHARAGAVA MANDIRAM,PUTHUPPALLY NORTH P.O., KAYAMKULAM, PIN - 69052 ``` ``` BY ADVS. P.F.ROSY PHILIP.N.JOSEPH SNEHA RAJIV ``` ## **`RESPONDENT/RESPONDENT:`** ``` DHANAPALAN S S/O KUNJU PILLAI , K.Y NILAYAM (VALYATHU VADAKKETHARAYIL ) OACHIRA, KARUNAGAPPALLY TALUK KOLLAM, PIN - 690528 ``` ``` BY ADVS. V.PREMCHAND HALIYA T.P.(K/001754/2022) MAHADEV M.J.(K/182/2022) ``` RPFC Nos.61 & 170/2024 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30864 ``` ``` :3: ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 7.04.2025, ALONG WITH RPFC.61/2024, THE COURT ON 10.04.205 DELIVERED THE FOLLOWING: ``` RPFC Nos.61 & 170/2024 ``` 2025:KER:30864 ``` **==> picture [58 x 57] intentionally omitted <==** **==> picture [22 x 9] intentionally omitted <==** ## **`ORDER`** Both these revision petitions are preferred against the order of the Family Court, Chavara in MC No. 119/2019. I refer to the status of the parties as they are shown in the impugned order. 2. The 2[nd] petitioner is the daughter of the respondent. The 1[st] petitioner is the grandmother of the 2[nd] petitioner. The petitioners filed a maintenance case against the respondent claiming maintenance @Rs.25,000/- per month. The marriage between the daughter of the 1[st] petitioner and the respondent was solemnized on 12/2/2003. The 2[nd] petitioner was born in their wedlock on 23/3/2005. Their marriage was dissolved on 23/3/2010 as per the decree passed by the Family Court, Kollam in OP(HMA) No.363/2007. According to the petitioners, the 2[nd] petitioner is under the care and custody of the 1[st] petitioner. It is alleged that the respondent has sufficient means to maintain the 2[nd] petitioner, but he wilfully neglected to maintain her. 3. Along with the maintenance case, the petitioners filed Crl.M.P.No. 225/19 for interim maintenance. The Family Court granted `5,000/- to the 2[nd] petitioner as interim monthly maintenance. Since the respondent failed to pay the interim RPFC Nos.61 & 170/2024 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30864 ``` ``` :5: ``` maintenance in spite of repeated directions, his defence was struck off as per the order in Crl.M.P.No.647/23. After trial, the Family Court allowed the MC and granted monthly maintenance of `5,000/- to the 2[nd] petitioner from the date of the petition. The respondent has preferred RPFC No.61/2024 challenging the orders passed in MC No.119/2019 as well as in Crl.M.P.No.647/23. The petitioners filed RPFC No.170/2024 dissatisfied with the quantum of maintenance granted to the 2[nd] petitioner. 4. I have heard both sides. 5. The paternity of the 2[nd] petitioner is not in dispute. The learned counsel for the petitioner in RPFC No. 61/2024 submitted that the maintenance case filed by the respondents before the Family Court is not maintainable for two reasons: (i) When the mother of the 2[nd] petitioner is alive, the 1[st] petitioner cannot maintain a petition on behalf of the minor, the 2[nd] petitioner. (ii) The entire dispute between the respondent and the mother of the 2[nd] petitioner was settled and at the time of the settlement, he had given `5,00,000/- in lieu of maintenance to the 2[nd] petitioner as the full and final settlement and based on the said settlement, the Lok Adalat passed an award and as such, the 2[nd] petitioner cannot claim maintenance. 6. So far as the first contention is concerned, it is not in RPFC Nos.61 & 170/2024 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30864 ``` ``` :6: ``` dispute that the 1[st] petitioner is the grandmother of the 2[nd] petitioner. It is also not much in dispute that at the time of filing the M.C., the 2[nd] petitioner was under the care and custody of the 1[st] petitioner. The 2[nd] petitioner, being minor, cannot directly file a petition for maintenance. It is settled that a person who has sufficient interest in the minor can move an application seeking maintenance under Section 125 of Cr.P.C. [ Ramakrishnan v. Kali 1987 KHC 618]. Therefore, the contention that the 1[st] petitioner has no locus standi to file a petition for maintenance on behalf of the 2[nd] petitioner cannot be accepted. 7. So far as the second contention is concerned, it is settled that the right of a minor child to claim maintenance from its father cannot be forfeited by virtue of an agreement/ compromise entered into between the father and the mother. When the obligation on the father to maintain his minor child is recognised by a Statute, it is a matter of public policy. A statutory right which has been conferred on a person under public policy cannot be waived by the said person by an agreement ( Vikraman Nair and Another v. Aishwarya and Others 2018 (5) KHC 156). The contention of the respondent is that the matrimonial dispute between him and his wife before the Family Court was settled at the Lok Adalat and an award was passed. It is his case that as a RPFC Nos.61 & 170/2024 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30864 ``` ``` :7: ``` part of the settlement, a consolidated sum of `5,00,000/- was given to the wife in lieu of maintenance of the wife and the 2[nd] petitioner. It is pertinent to note that the 2[nd] petitioner was not a party to the said compromise or in the cases between the respondent and his wife. Therefore, any compromise entered into between the respondent and his wife cannot bind the 2[nd] petitioner. 8. The 2[nd] petitioner claimed maintenance @`25,000/per month. The Family Court granted only `5,000/- per month. Admittedly, the respondent is a pensioner. He was employed at the Military. According to the petitioners, the respondent gets a monthly pension of `30,000/- apart from `25,000/- from the financial firm run by him. The respondent has admitted that he is a pensioner. But according to him, he gets only `17,000/- per month. Ext.X1 series, the statements of account of the respondent would show that the respondent has received a sum of `35,00,000/- from the pension account as commuted pension. It is a case where the defence of the respondent was struck off. The respondent did not produce any document to prove his income. In the absence of any evidence as to the actual income earned by the respondent, the evidence given by the petitioners regarding the income of the respondent is only to be accepted. RPFC Nos.61 & 170/2024 ``` 2025:KER:30864 ``` **==> picture [58 x 57] intentionally omitted <==** **==> picture [22 x 9] intentionally omitted <==** Considering the means of the respondent and the requirement of the 2[nd] petitioner, I am of the view that the monthly maintenance of `5,000/- granted by the Family Court is too low and it has to be enhanced to `8,000/- per month. 9. The Supreme Court in Rajnesh v. Neha [(2021) 2 SCC 324] upheld the power of the Court to strike off the defence if there was non compliance of the order of the payment of maintenance. It was held that striking off the defence can be resorted to if the court finds default to be wilful and contumacious, particularly to a dependent unemployed wife and minor child. As stated already, the respondent has ability to maintain the 2[nd] petitioner. The 2[nd] petitioner was only aged 13 years at the time of filing of the maintenance case. The 2[nd] petitioner was in the custody of the 1[st] petitioner who has no job or source of income. Even though interim maintenance was awarded by the Family Court as early as on 30/7/2022, not a single month's maintenance is paid so far. Therefore, it is evident that failure on the part of the respondent to pay interim maintenance ordered by the Family Court is wilful and contumacious. Thus, no interference is called for in the order passed by the Family Court striking off the defence. In the light of the above findings, RPFC No.61/2024 is RPFC Nos.61 & 170/2024 ``` 2025:KER:30864 ``` **==> picture [58 x 57] intentionally omitted <==** `:9:` dismissed and RPFC No.170/2024 is allowed. The monthly maintenance granted by the Family Court is modified and the respondent is directed to pay monthly maintenance of `8,000/(Rupees Eight thousand only) per month to the 2[nd] petitioner from the date of the petition. ``` Sd/- ``` ``` DR. KAUSER EDAPPAGATH ``` ``` JUDGE ``` ``` Rp ``` RPFC Nos.61 & 170/2024 **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30864 ``` ``` :10: ``` ## **`APPENDIX OF RPFC 170/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure A1 ``` ``` TRUE COPY OF THE ORDER DTD.29.11.2023 IN CMP NO.569 /2023 ```