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2021 Supreme(Ker) 269
IN THE HIGH COURT OF KERALA
Mary Joseph, J.
Fathima Fidha – Appellant
Versus
Faisal - Respondents
R.P.F.C. No.538 of 2018
Decided on : 12-01-2021
For the Petitioner: B.H. Mansoor
For the Respondent: K.A. Salil Narayanan
The court emphasized the importance of proving neglect or refusal by the responsible party and the entitlement of the maintenance allowance to meet monthly expenditures, especially in the best interest of the child.
Headnote:
Maintenance Allowance - Family Law - S.125 Cr.P.C. - Summary
Fact of the Case:
The case involved a dispute over the maintenance allowance granted to a minor girl by the Family Court. The father sought to set aside the maintenance order, alleging that the mother was using the allowance for personal needs instead of the child's welfare.
Finding of the Court:
The Family Court declined to cancel the maintenance order but directed the father to deposit the allowance in a bank account for the minor girl's benefit. The husband challenged this decision, leading to a revision petition.
Issues: The key issues revolved around the remarriage of the mother, the housing and expenses of the minor girl, and the legality of directing the maintenance allowance to be deposited in a bank account.
Ratio Decidendi: The court found that the husband failed to prove the allegations against the wife and that the monthly maintenance allowance should be disbursed to meet the child's monthly expenditures. It emphasized the best interest of the child and the purpose of S.125 Cr.P.C. in preventing destitution and vagrancy.
Final Decision: The revision petition was allowed, and the Family Court's directions were set aside. The original maintenance order was revived, and the husband was directed to comply with it, ensuring that the allowance is utilized for the minor's benefit and welfare.
ORDER :
The revision on hand is filed against an order passed by Family Court, Kozhikode on 30.12.2016 in M.C.No.408 of 2016. The above M.C. was filed by the respondent seeking to set aside the order passed by Family Court in M.C.No.265 of 2011 on 08.08.2012, granting maintenance allowance at the rate of Rs.1,500/- per month to a minor girl namely Fathima Fida, who is his daughter. It is contended in the petition that she was put by the next friend who is none other than her mother in an Yatheemghana namely ‘Kuttikkattoor Muslim Yatheemghana’ and her expenditures including food, dress, treatment and education were met with by the authorities of that institution. It is further contended that the mother is remarried and at present is utilising the monthly maintenance allowance ordered in favour of the minor child for her own personal needs and thereby the purpose intended to be achieved by S.125 Cr.P.C. is defeated.
2. The respondent has filed the counter statement denying all the averments as above. It is contended that the minor girl was admitted by her in ‘Darul Qur’ anil Kareem which is only a residential school meant for imparting education to children and the fee and other expenses of the minor girl are paid by herself.
3. In M.C.No.408 of 2018, the petitioner was examined as PW1. Evidence of any nature was not adduced by the respondent. The Family Court after appreciation of the entire evidence declined to pass an order cancelling the order in M.C.No.265/2011 but issued directions as follows:
“ xxxxxx
b) the respondent can open S/B Account in a Nationalised Bank in the name of the minor child Fathima Fida and has to intimate the same to the petitioner within a period of one month.
c) the petitioner can deposit the amount of maintenance allowance as ordered by this court in M.C.265/2011 in the above S/B Account and can get discharge of his liabilities.
d) the bank authorities can pay the amount deposited in the above S/B Account after attaining majority to the child Fathima Fida or on getting order from this court before attaining majority.
e) the respondent is given liberty to file CMP for execution of the order.
f) any of the parties can furnish the copy of the order before the concerned bank for observing the directions of the court.”
The respondent being aggrieved by directions issued as b, c and d, has preferred the revision on hand.
4. Sri.B.H.Mansoor, appearing for the revision petitioner has contended that the minor girl in fact was admitted in a school namely ‘Darul Qur’ anil Kareem’ and her entire expenditures including the fee for her education are paid by her mother. According to him, the husband failed to establish the contentions raised in the M.C. But after drawing certain inferences and assumptions, the Family Court issued directions as above. It is further urged that the impugned order would defeat the very purpose of S.125 Cr.P.C., which was incorporated into the Code of Criminal Procedure by the Parliament to prevent destitution and vagrancy. According to him, though the mother is remarried, the minor girl is still maintained by her. It is further contended that the direction to deposit the maintenance amount in SB Account opened in the name of the minor girl and to disburse it on attainment of her age of majority or to issue appropriate orders for release of the amount by the court, will only defeat the purpose intended to achieve by S.125 Cr.P.C. It is further pointed out that the respondent has neither opened a bank account nor deposited any amount, despite the directions issued by the court vide the impugned order, till date. Accordingly, the order under challenge was sought to be set aside.
5. The learned counsel for the respondent in the revision has contended that the revision petitioner is admittedly remarried and therefore there is no basis in taking advantage of the directions issued by the Family Court, in its order passed in M.C.No.265 of 2011. According to him, apart from denying the averments in the
