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2021 Supreme(Online)(KER) 13027
HIGH COURT OF KERALA
P.K.SIVADASAN – Appellant
Versus
JAINY – Respondent
RPFC 203 2020
A major child must establish incapacity to claim maintenance under Section 125 Cr.P.C, while a presumption of marriage can support the spouse's claim.
Headnote:
Maintenance - Family - Cr.P.C Section 125 - The court upheld the Family Court's decision awarding maintenance to the wife based on marriage status while setting aside the allowance for the daughter, highlighting the requirement for her to establish incapacity under Cr.P.C. Section 125 clause (c).
Fact of the Case:
The revision was filed against a Family Court order granting maintenance to a wife and daughter. The wife's marriage was admitted, but the daughter, being a major, was required to prove her incapacity for maintenance under Section 125 of the Cr.P.C.
Finding of the Court:
The court found sufficient evidence to establish the wife's status for maintenance but held that the daughter failed to prove her incapacity, thus the Family Court's order for her maintenance was set aside.
Issues: Whether the marriage was valid under Hindu law affecting maintenance claims and if the daughter, being a major, required a separate claim establishing her incapacity.
Ratio Decidendi: While the Family Court may presume marriage status in maintenance claims under Cr.P.C, a major child must independently establish their incapacity to claim maintenance.
Final Decision: The revision is partly allowed, setting aside the maintenance order for the daughter but maintaining it for the wife.
O R D E R
Dated this the 18th day of February, 2021 The revision on hand is filed against an order passed by Family Court, Ernakulam on 08.07.2019 in M.C. No.371 of
2017. The revision petitioner is the respondent in the M.C.
2. M.C. was filed under Section 125 Cr.P.C seeking for monthly maintenance allowance at the rate of Rs.15,000/- to the wife and Rs.10,000/- to the daughter. The Family Court has allowed the M.C and awarded monthly maintenance allowance as claimed by the petitioners. Seeking for a reversal of the order for the reasons that a valid marriage was not solemnised among the revision petitioner and the 1st respondent and that the 2nd respondent, a major, failed to establish exceptional circumstances which enable her to get maintenance allowance, under clause (c) of Sub Section (1)
of Section 125 Cr.P.C.
3. The facts of the case in brief are summarised hereinbelow :
For the sake of clarity, the parties to this revision will hereinafter be referred to as the respondent and the petitioners in accordance with their status in the M.C. The respondent married the 1st petitioner on 28.04.1996 and the 2nd petitioner was born in the wedlock on 09.05.1997. The 2nd petitioner was doing final year degree course at St.Albert's College, Ernakulam and the respondent was employed as LPG operator in Hindustan Petroleum Corporation at its Irumpanam Unit for a salary of Rs.90,000/-. The 1st petitioner left the respondent's company alongwith the 2nd petitioner on 14.12.2014 without any valid reason and started to reside separately. The respondent then preferred O.P. No.2213 of 2015 seeking for a decree for dissolution of marriage. The 2nd petitioner was diagnosed with Adolescent Idiopathic Scoliosis and had availed treatment for that from Lakeshore Hospital, Ernakulam. The petitioners have no means for their sustenance and therefore seeking for Rs.15,000/- and Rs.10,000/- respectively as monthly maintenance allowance, M.C was filed before the Family Court.
4. In the counter statement filed by the respondent the status of the petitioners respectively as his wife and daughter was admitted by him. It was contended that his monthly salary is between Rs.50,000/- and Rs.55,000/-. The matrimonial home was left by the petitioners due to cruel treatment by the respondent. The treatment and educational expenses of the 2nd petitioner were met by the respondent. The respondent has also to look after his aged mother and to repay dues towards the housing loan availed by him. Thus, M.C. was sought to be dismissed.
5. Before the Family Court, the 1st petitioner and the respondent adduced oral evidence respectively as PW1 and RW1. Ext.D1 series were also marked on the side of the respondent. The Family Court found that the 1st and 2nd petitioners are entitled to get monthly maintenance allowance from the respondent and fixed Rs.15,000/- and Rs.10,000/- respectively as the sums payable to them. The respondent has established successfully by marking Ext.D1 series in evidence that some amount has already been paid by him towards maintenance allowance during the period of consideration of the M.C. and therefore, the Family Court has directed the same to be adjusted towards the monthly maintenance allowance stands ordered by it vide the impugned order.
6. The contention of Smt.Sheeba Thomas firstly was that the cause title of the M.C itself discloses that the 1st petitioner is a Hindu and the respondent, a Christian by religion. According to her, since one of the parties to the marriage being a non-Hindu, their marriage cannot be treated as valid under Section 5 of the Hindu Marriage Act , 1955 and the 1st petitioner not being the wife of the respondent is disentitled to raise a claim for monthly maintenance allowance under Section 125 Cr.P.C.
7. It is contended by Smt.Sheeba Thomas secondly that the
2nd petitioner in the case on hand was born on 09.05.1997 and being a major at the relevant time of filing of M.C, she must plead in the M.C and establish during
