IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 125 of 2006()
1. P.P. ANIL KUMAR, S/O. PRABHAKARAN,
... Petitioner
Vs
1. S.V. SUBIMOL, W/O ANILKUMAR
... Respondent
2. AKSHAY (MINOR)REP.BY HIS MOTHER
For Petitioner :SRI.TITUS MANI
For Respondent :SRI.P.BABU KUMAR
The Hon'ble MR. Justice R.BASANT
Dated :21/08/2006
O R D E R
R. BASANT, J.
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R.P.(F.C).No. 125 of 2006
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Dated this the 21st day of August, 2006
O R D E R
This revision petition is filed against a direction issued by the
Family Court to the petitioner to pay maintenance under Section 125
Cr.P.C. at the rate of Rs.1,000/- p.m. each to the claimants,
admittedly the wife and child of the petitioner herein.
2. Marriage is admitted. Paternity is not disputed. That the
spouses are living separately is not disputed. The quantum of amount
awarded is not challenged.
3. What then is the challenge? The learned counsel for the
petitioner submits that the learned Judge of the Family Court had
misdirected himself in law and in facts in directing payment of
maintenance from the date of the petition and not from the date of the
order, which must be the normal rule. The learned counsel for the
petitioner has taken pains to urge that the mandate of Section 125(2)
Cr.P.C. has to be complied with strictly by criminal courts and the
R.P.(F.C).No. 125 of 2006 2
principles of natural justice and fairness must inform the courts that a
direction for payment of maintenance from the date of petition deviating
from the normal rule of payment of maintenance from the date of the order
can be issued only if sufficient reasons exist. In the instant case sufficient
reasons do not exist and therefore exercise of that discretion has to be
interfered with in revision. This in short is the contention.
4. Why did the learned Judge of the Family Court direct payment of
maintenance from the date of the petition and not from the date of the
order? The answer to that question is clearly stated in the following
passage in the penultimate paragraph of the order:
“At the time of conciliation on 5.5.2004 he expressed
that he is willing to pay interim maintenance Rs.500/- per
month to the minor. After that he paid Rs.1000/- on
14.9.2004 and Rs.500/- on 13.12.2004. Thereafter no
payment. He is a Government employee, refusing
maintenance to the petitioners. Hence maintenance allowed
to the petitioners from the date of petition and the payment
made, Rs.1500/- is to be deducted.”
5. The petition was filed on 6.11.2003. It was on 5.5.2004 that there
was an agreement to pay interim maintenance at the rate of Rs.500/- p.m.
Only an amount of Rs.1,500/- has been paid. It is too much to assume that
R.P.(F.C).No. 125 of 2006 3
in the light of the disputes between the parties about payment of
maintenance, any amount would have been paid during the pendency of the
proceedings, except properly and formally through court. Though it is
contended that some other payments have also been made by the petitioner
(not to the claimants) during the pendency of the proceedings, I am
certainly of the opinion that they even if true need not be taken into account
while considering the claim under Section 125 Cr.P.C.
6. I shall extract Section 125(2) Cr.P.C. below:
“125(2): Any such allowance for the maintenance
or interim maintenance and expenses for proceeding shall be
payable from the date of the order, or, if so ordered, from the
date of the application for maintenance or interim maintenance
and expenses of proceedings, as the case may be”
(emphasis supplied)
There can be no dispute in the light of the language of Section 125(2) that
ordinarily an order has to take effect from the date of the order and not from
the date of the petition. But the courts have an effective, real and
reasonable discretion to direct payment of maintenance from the date of the
petition. After the amendment to Section 125, interim directions for
payment of maintenance can now be ordered also.
R.P.(F.C).No. 125 of 2006 4
7. In the instant case, no specific interim directions appear to have
been issued in the light of the agreement which is referred to in the
paragraph extracted above. That undertaking has not been complied with.
Altogether an amount of Rs.1,500/- was paid during the period from
5.5.2004 to 28.3.2006. The court below has referred to this specific aspect.
8. The discretion under Section 125(2) Cr.P.C. has to be exercised
judicially and judiciously by the court concerned. I cannot expect any
better reasons in any other case, which can persuade this court to now
hold that this is not a fit case where the discretion can be invoked against
the petitioner. In spite of the specific understanding in the course of the
proceedings to pay interim maintenance, even that amount has not been
paid. I am of the opinion that the learned Judge of the Family Court has
committed no error – much less any gross error – warranting invocation of
the revisional jurisdiction of superintendence and correction to interfere
with such discretion in directing payment of maintenance from the date of
the petition.
9. The decisions reported in Mani v. Esther (1980 KLT 969),
R.P.(F.C).No. 125 of 2006 5
Lakshmikutty Amma v. Balan Pillai, (1989 (2) KLT 503) and Lokesh
v. Lekha Lokesh (1995(1) KLT 228) do not at all persuade me to
conclude that the learned Judge of the Family Court has committed any
such error warranting interference in revision.
10. This revision petition is accordingly dismissed.
(R. BASANT)
Judge
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