Custody claims hindered by failure to fulfill maintenance obligations emphasize the primacy of financial support for dependents.

Devan Ramachandran, J.

The appellant challenges the order of the learned Family Court, Palakkad, in I.A.No.4/2024 in O.P.No.517/2023, as being illegal and unlawful.

2. The afore mentioned Original Petition has been filed by the appellant seeking permanent custody of his two children, in which the respondent – wife filed the above mentioned I.A seeking that his pleadings be struck off under the provisions of Order VI, Rule 16 of the Code of Civil Procedure (CPC), for not having complied with an earlier order through which he was enjoined to pay maintenance both to her and to the children.

3. The learned Counsel for the appellant - Sri.C.Dheeraj Rajan, argued that his client is a physically disabled person with 60% disability and is not earning enough to pay maintenance to his wife and children; further asserting that the appellant is earning an exiguous amount as a Security Personnel. He thus argued that the burden put on his client, to pay the entire arrears of maintenance before he can prosecute his Original Petition, is onerous; and therefore, liable to be set aside.

4. We are afraid that we cannot find favour with the afore submissions for various reasons. For the first, when the appellant says that he is physically disabled and that he has no money to pay maintenance, not only to his wife but also to his children, we prima facie fail to understand how he can then seek an order of permanent custody over them. For the second, the learned Family Court has recorded in the order that the petitioner was asked to pay 50% of the arrears when it considered the afore mentioned I.A on 10.03.2025; and on his request, the time frame was further extended, with the case being listed for such purpose on 29.03.2025, 09.04.2025 and 22.04.2025. In spite of this, the appellant did not pay a penny; and interestingly, his submission before us is also that he does not have the capacity to pay.

5. It is thus obvious, that the appellant is attempting to seek equity in blatant disregard of his obligation under law and equity; and that the learned Family Court has acted well within its powers in having allowed I.A.No.4/2024. This is more so, when it is admitted that the appellant's wife and children are in requirement of financial resources and do not have other avenues for their sustenance. When the appellant feigns incapacity to pay even the most exiguous maintenance, we cannot find favour with him at all. This is more so, when the appellant has already enjoyed more than fifteen months to honor the maintenance amount, counting from the first order by which he was ordered to do so by the learned Family Court.

6. Perhaps sensing the mind of this Court as afore, Sri.C.Dheeraj Rajan, at this time, intervened to say that his client will deposit the arrears of maintenance, if given a month's time. This submission again fortifies our observations above;

but we deem it appropriate to grant him one last latitude.

7. In the afore perspective, and though we are fully aware that we have not issued notice to the respondent yet, we deem it apposite to reserve liberty to the appellant to move the learned Family Court, after deposit of the entire arrears of maintenance.

8. We, therefore, direct the appellant to deposit before the learned Family Court, the entire arrears of maintenance, as adjudicated against him, on or before 04.08.2025; in which event, the impugned order will stand vacated.

9. Needless to say, if the appellant does not deposit the amount as ordered, the benefit of this judgment will be lost to him and the impugned order will stand confirmed.

It further goes without saying that, if the deposit is made as afore, then the learned Family Court will decide O.P.No.517/2023 in terms of law, after affording necessary opportun