Point of Law: If any cogent materials on the above aspects are made available by a party, that must also form basis for fixation of the monthly allowance for interim maintenance.

JUDGMENT :

MARY JOSEPH, J.

1. This Original Petition is filed under Article 227 of the Constitution of India seeking to quash Ext.P4 order passed by Family Court, Pathanamthitta in Crl. M.P. No. 305/2019 in M.C. No. 132/2019. Crl. M.P. No. 305/2019 was filed by the girl child of the petitioner seeking for monthly allowance for interim maintenance from him. The respondent appeared before the Family Court and submitted that he is an Ex-service man getting Rs. 20,000/- as pension. The Family Court directed the respondent on the basis of that information to pay Rs. 5,000/- as monthly allowance for interim maintenance. Being aggrieved by the above order, this Original Petition (Criminal) is filed.

2. The learned counsel for the petitioner submitted on the basis of the certificate of birth of the girl child produced alongwith the petition on hand that she has become major on 19.07.2021. Accordingly, it was contended that her entitlement to get monthly allowance for interim maintenance is only up to the month of the year in which she attained the age of majority. According to the learned counsel, though the Family Court was apprised of that aspect, it was not considered and thereby the impugned order was passed.

3. The copy of the objection filed before the Family Court in the M.C. is produced. It bears the date on which the impugned order was passed. Though objection is not separately filed in Crl. M.P. No. 305/2019, it being filed in the M.C. and available to the Family Court while proceeding to pass an order granting monthly allowance for interim maintenance, it shall take those into account. If any reliable documentary evidence is already made available for consideration of the Family Court, those must also be dealt with, in the order passed.

4. This Court had occasion to see from several instances of challenges raised against orders granting monthly allowance for interim maintenance that, orders have been passed without considering relevant materials though made available to it by the parties, sufficiently earlier.

First and second proviso to Section 125(1) Cr.P.C. reads:

“Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable and to pay the same to such person as the Magistrate may from time to time direct.”

Therefore, the Magistrate may order the respondent, during the pendency of the proceedings seeking for monthly maintenance allowance, to pay some amount towards monthly allowance for the interim maintenance of his wife or child, father or mother, together with the expenses of such proceedings, as he/she considers reasonable and to such person, as he/she may directs from time to time.

5. The following are the categories of people entitled to claim monthly maintenance allowance under Section 125(1) Cr.P.C.

(1) wife unable to maintain herself.

(2) legitimate or illegitimate minor child, whether married or not, unable to maintain itself.

(3) 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.

(4) father or mother, unable to maintain himself or herself.

6. As contemplated under Section 125(1) Cr.P.C. the person responsible must be established by the claimant for monthly maintenance allowance, as having sufficient means and that he/she was neglected or refused to be maintained by him. It is incumbent upon the respondent under the above p