IMPORTANT POINT
The paternal grandfather has a duty to maintain his grandchild when the father is deceased and the mother is unable to do so, regardless of procedural objections raised late.

JUDGMENT :

Devan Ramachandran, J.

Petitioner is the father of late Mujeeb K. It is stated that the latter unfortunately passed away by suspected suicide.

2. The first respondent is the wife of Mujeeb K., and the second respondent his young daughter of two years. They filed O.P.No.454/20 before the Family Court, Mavelikkara, seeking a decree against the petitioner to a certain sum of money, which is alleged to have been entrusted to him by the father of the first respondent at the time of her marriage with his son, as also for maintenance to the second respondent – child, till she attains majority.

3. The records reveal that the respondents also filed I.A.4/2021 seeking interim maintenance for the second respondent - child asserting that, as per the applicable Muslim Law, it is the duty of the grandfather to maintain his grandchild when his father is no more or is poor, and if he has enough means to look after the ward. The first respondent specifically averred in the said application that “she has no income or source to look after the well being of the small child” (sic); and that the petitioner herein has enormous wealth, being an expatriate Indian working in a country in the United Arab Emirates.

4. Pertinently and as fully admitted, the above said application was filed by the respondents herein as early as on 27.2.2021; and it is conceded expressly that the petitioner did not file any objection to the same. His learned counsel - Sri.Basil Chandy Vavachan, however, explained that, this was because, his client was under the impression that the said I.A. is not maintainable since no statement of assets and liabilities of the 1st respondent was annexed to it. He, however, admitted that, under the applicable law, the child can seek maintenance from his paternal grandfather, since his father is no more; but that this is solely on the condition that his mother has no means to do so, which she must establish.

5. The aforesaid application was allowed by the learned Family Court, directing the petitioner to pay an amount of Rs.5,000/- per month to the second respondent - child from the date of filing of the Original Petition; and assailing it, the petitioner is before us.

6. The impugned order shows that the I.A. in question was considered by the learned Family Court on 13.03.2023; on which day, counsel for both sides were present and heard. This is also fully conceded to by Sri.Basil Chandy Vavachan before us. Pertinently, the order does not even reflect that an objection was raised qua the maintainability of the I.A., and it is luculent that, even in the pleadings of this case no such contention has been impelled. Obviously, it can only be construed that the petitioner did not raise the aspect of maintainability of I.A.No.4/2021 before the learned Family Court at any point of time.

7. Nevertheless, Sri.Basil Chandy Vavachan – learned counsel for the petitioner, today argued that I.A.No.4/2021 is not maintainable because it violates the declarations of the Hon’ble Supreme Court in Rajnesh v. Neha [2021(2)SCC 324], contending that, by the guidelines postulated therein, every application for maintenance, or interim maintenance, has to be supported by an affidavit of the petitioner, disclosing his or her assets and liabilities. He predicated that, when no such, admittedly, accompanied I.A.No.4/2021, it can only be taken to be infirm and not maintainable; and therefore, that the learned Family Court was in error in having allowed it.

8. However, in response, Smt.V.Beena – learned counsel for the respondents, submitted that her clients did not ask for maintenance for the 1st among them, but only for the second - who is a child of mere two years in age; and that too, because the former has no means or income to maintain even herself, much less the latter. She argued that, when the husband of the 1st respondent (father of the 2nd respondent) committed suicide, both of them were left forlorn and are finding it very difficult to sustain, particularly