IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 525 of 2007()
1. P.ARAVIND, AGED 55 YEARS,
... Petitioner
Vs
1. S.A.KUNHIRAMAN NAMBIAR, AGED 85 YEARS,
... Respondent
For Petitioner :SRI.V.R.KESAVA KAIMAL
For Respondent :SRI.V.A.SATHEESH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P(FC) NO.525 of 2007
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Dated this the 13th day of July, 2009
O R D E R
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The father at a time when he had crossed 70 years claimed
maintenance from his son alleging that he has no means to sustain
himself. Petitioner, son contended that father in the youthful days
went in search of his own pleasure leaving himself and his younger
brother to the mercy of their maternal grand father and never
cared for them. Petitioner studied in Mahatma Gandhi College,
Thiruvananthapuram but according to him, he had to discontinue his
studies since he had no money to pursue his study. It is also his case
that he had to continue his studies elsewhere with much difficulties
and after completion of his studies he got employment in the Central
Excise. He says that before he got employment, he had to go for
manual work at Bombay. He claimed that father has other children
also in his first marriage as well as second marriage, but they all have
been spared and he has been singled out for claiming maintenance.
Both sides adduced evidence. Learned Judge of the Family Court
found that petitioner is bound to maintain his father and directed him
to pay maintenance at the rate of Rs.1,200/- per month. That order is
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under challenge in this revision. Learned counsel for petitioner
contended that on the facts and evidence there was no justification in
the court below directing petitioner to pay maintenance. It is also
contended that respondent, father has sufficient means to maintain
himself. Counsel for respondent supported the findings of the court
below.
2. In the wedlock between respondent and mother of
petitioner three children were born – two sons including petitioner and
a daughter. It is not very much in dispute that at a time when
petitioner was aged 10 years and had a younger brother, respondent
went to Singapore with his wife (mother of petitioner) putting
petitioner and his younger brother in the care and custody of their
maternal grand father. While so in the year, 1996 respondent
returned to his native place (mother of petitioner died while she was
at Singapore). After sometime he married another lady and a son is
born in that wedlock. That lady was divorced by respondent when he
was aged 74 years according to the respondent, as she wished that.
It is not in dispute that petitioner is working in the Central Excise and
his daughter is studying in a private Medical College at Karnataka.
3. Assuming that there was lack of love and affection on the
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part of respondent towards the petitioner sometime back, that is not a
ground for petitioner to disown his liability under law to pay
maintenance to the respondent if the latter is not capable of
maintaining himself. Exhibits A1 to A6 series show that respondent is
undergoing treatment in his old age and as per Ext.A7, pass book
respondent had Rs.10,000/- in his account in the year 2004. Exhibit
R1 is the copy of the document in the name of respondent produced
by the petitioner to show that he has 12 cents of land. I find from the
evidence of respondent that Ext.R1 was not put to him but he admitted
in cross-examination that he is staying in 11.5 cents of land which
according to him belonged to his tarwad which is a trust. It is not
shown that the said property is fetching any income. Another
document now produced in this revision is Annexure A1 (this document
was not produced in the court below). That is copy of a partition deed
executed on 3.10.2006 with respondent and his daughter in the first
marriage as executants and making petitioner also a party though the
latter has not signed the document. As per that partition deed 8 cents
of land belonging to the first wife of respondent (mother of petitioner)
was partitioned between petitioner, respondent and his daughter (in
the first marriage). As per that partition eight cents and two small
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houses were allotted to the share of respondent and his daughter
while one cent was allotted to the petitioner. When examined in the
court below on 1.10.2006 respondent has stated that he has no other
property in his possession. Assuming that Annexure A1 property is
with respondent it is not shown that it fetched any income so that
respondent could sustain himself by such income. It has been held
that what is relevant for consideration under Section 125(1) of the
Code of Criminal Procedure is not ownership or possession of some
land but the income that is derived therefrom. Respondent denied
that he is getting any pension and there is also no evidence in that
line. He stated that after returning from Singapore he worked in a
sugar factory as Personal Assistant to the Manager Director at
Bombay. At that time he was getting Rs.16,000/- per month but he is
not getting any pension. I may say that there is no evidence to show
that respondent is getting any pension. In these circumstances
there is no reason to interfere with the finding of the court below
particularly considering the old age of respondent and the fact that he
is undergoing treatment as evidenced by Exts.A1 to A6 series that
respondent is able to sustain himself without financial assistance from
others.
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4. So far as capacity of petitioner is concerned, he has not
produced any document to show his monthly income. Concededly he
is in his 50’s and working in Central Excise. His daughter is studying in
a private Medical College . Therefore in the normal course it can be
taken that petitioner is having sufficient means.
5. What is awarded as maintenance to the respondent is only
Rs.1,200/-. Respondent in his old age has to take care of basic needs
such as food, clothing, medicines, shelter and all other necessities. I
am not inclined to think that what is awarded is excessive or beyond
the capacity of petitioner. I find no reason to interfere with the order
under challenge. Revision is without merit and is liable to be
dismissed.
Revision Petition is dismissed. Amount if any deposited by
petitioner in the court below can be withdrawn by the respondent
and adjusted towards arrears if any payable.
THOMAS P.JOSEPH, JUDGE.
vsv