IMPORTANT POINT
Award of interim maintenance to daughter – Christian daughter is entitled to claim maintenance – In absence of any express bar or prohibition, Section 125 of Cr.P.C. could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in application.

JUDGMENT

P.G. Ajithkumar, J.—The respondent in O.P. No. 606 of 2019 on the file of the Family Court, Ernakulam has filed this original petition under Article 227 of the Constitution of India. He challenges the order of the Family Court dated 07.03.2022 in I.A.No.5447 of 2019 in O.P.No.606 of 2019, whereby the petitioner was directed to pay interim maintenance to the respondent at the rate of Rs.15,000/- per month.

2. On 22.09.2022 notice on admission was ordered to be served on the respondent. The respondent entered appearance through her learned Counsel.

3. Heard the learned Counsel appearing for the petitioner and learned Counsel appearing for the respondent.

4. The petitioner is the father of the respondent. Marriage between the petitioner and the mother of the respondent which was solemnized on 12.11.1995 was dissolved as per the order of the Family Court, Ernakulam dated 18.06.2012. The respondent filed O.P. No. 606 of 2019 under Section 7 of the Family Courts Act, 1984 seeking a decree for payment of maintenance; both past and future. The respondent also claims Rs.75,00,000/- towards her marriage expenses. The petitioner has filed an objection resisting the claims of the respondent. Meanwhile the respondent filed I.A.No.5447 of 2019 claiming interim maintenance at the rate of Rs.15,000/- per month. The petitioner has filed an objection. After hearing both sides the Family Court allowed I.A.No.5447 of 2019 and directed the petitioner to pay interim maintenance at the rate of Rs.15,000/- per month. Ext. P5 is a copy of that order.

5. The learned Counsel appearing for the petitioner would submit that considering the monthly income being derived, the petitioner is not in a position to pay such an amount. He has to look after his second wife, daughter, step son and mother in law. He is getting only pension now, having he retired voluntarily from service in the year 2019. The learned Counsel appearing for the petitioner raises a legal contention that what the respondent can claim is maintenance as provided under Section 125 of the Code of Criminal Procedure, 1973, by operation of Section 7(2) of the Family Courts Act, and therefore, the Family Court is not empowered to order payment of interim maintenance. The learned Counsel placed reliance on the decision in Abhilasha v. Prakash and others [AIR 2020 SC 4355] in order to fortify that contention.

6. The contention of the learned Counsel appearing for the respondent on the other hand is that the petitioner at the time of retirement received a huge amount. He retired as a Scientist, and therefore, his monthly pension is much more than what is stated by him. When he has unhesitantly been maintaining his present wife, daughter, step son and mother in law, he cannot refuse to pay appropriate amount towards monthly maintenance of his daughter, the respondent, who is a medical student.

7. The parties are Christians. The decision in Abhilasha (supra) is regarding a claim under Section 20 of the Hindu Adoption and maintenance Act, 1956. The said decision cannot have applicable in this case. Explanation (f) of Section 7 of the Family Courts Act confers jurisdiction upon the Family Courts to try a suit or proceedings for maintenance.

8. The Apex Court in Shaila Kumari Devi v. Krishnana Bhagwan Pathak [(2008) 9 SCC 632] held that so far as ‘interim’ maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to make an order directing payment of interim maintenance. But the Code equally did not prohibit the Magistrate from making such an order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard t