Kerala High Court
RPFC/170/2024 of SUBHADRA BHARGAVAN Vs DHANAPALAN S on 10 April 2025
& 170/2024 2025:KER:30864 :1: IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947 RPFC NO. 61 OF 2024 AGAINST THE ORDERS IN MC NO.119/2019 DATED 27/12/2023 AND CRL.M.P.NO.647/2023 IN MC
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
RPFC NO. 61 OF 2024
AGAINST THE ORDERS IN MC NO.119/2019 DATED 27/12/2023 AND
CRL.M.P.NO.647/2023 IN MC NO.119/2019 DT 18/12/2023 OF
FAMILY COURT, CHAVARA
REVISION PETITIONER/PETITIONER:
DHANAPAL,
AGED 55 YEARS
S/O KUNJUPILLAI VAIDYAN, VALIYATH
VADAKKATHIL,CHANAGANKULANGARA, OACHIRA,
KARUNAGAPPALLY,KOLLAM, PIN: 690526, PIN - 690526
BY ADVS.
V.PREMCHAND
HALIYA T.P.
MAHADEV M.J.
RESPONDENTS/PETITIONERS:
SUBHADHRA BHARGAVAN
AGED 68 YEARS
W/O BHARGAVAN BHARGAVA MANDIRAM,PUTHUPPALLY NORTH
P O, KAYAMKULAM,ALAPPUZHA,, PIN - 690527
MISHKA DHANAPALAN,
AGED 18 YEARS
S D CHARISMA, FLAT NO 401,4TH FLOOR, NEAR GOMES
AR TEMPLE,SASMOLLEM, BAINA, VASCO DE GAMA, GOA, PIN-403802., PIN - 403802
BY ADVS.
ROSY P. F.
SNEHA RAJIV(K/001710/2018)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 7.04.2025, ALONG WITH RPFC.170/2024, THE COURT
ON 10.04.2025 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
RPFC NO. 170 OF 2024
AGAINST THE ORDER IN MC NO.119/2019 DATED 27/12/2023
OF FAMILY COURT, CHAVARA
REVISION PETITIONERS/PETITIONERS:
SUBHADRA BHARGAVAN
AGED 70 YEARS
W/O BHARGAVAN, BHARAGAVA MANDIRAM,
PUTHUPPALLY NORTH P.O.,
KAYAMKULAM., PIN - 690527
MISHKA DHANAPAL
AGED 19 YEARS
D/O DHANAPALAN S, S D CHARISMA FLAT NO. 401 FORTH
FLOOR NEAR GOMTESHWAR TEMPLE VASCO DA GAMA, GOA 403802 NOW RESIDING AT, BHARAGAVA
MANDIRAM,PUTHUPPALLY NORTH P.O.,
KAYAMKULAM, PIN - 69052
BY ADVS. P.F.ROSY
PHILIP.N.JOSEPH
SNEHA RAJIV
RESPONDENT/RESPONDENT:
DHANAPALAN S
S/O KUNJU PILLAI , K.Y NILAYAM (VALYATHU
VADAKKETHARAYIL ) OACHIRA, KARUNAGAPPALLY TALUK
KOLLAM, PIN - 690528
BY ADVS.
V.PREMCHAND
HALIYA T.P.(K/001754/2022)
MAHADEV M.J.(K/182/2022)
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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY
HEARD ON 7.04.2025, ALONG WITH RPFC.61/2024, THE COURT ON
10.04.205 DELIVERED THE FOLLOWING:
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ORDER
Both these revision petitions are preferred against the order of the Family Court, Chavara in MC No. 119/2019. I refer to the status of the parties as they are shown in the impugned order.
2. The 2nd petitioner is the daughter of the respondent. The 1st petitioner is the grandmother of the 2nd petitioner. The petitioners filed a maintenance case against the respondent claiming maintenance @Rs.25,000/- per month. The marriage between the daughter of the 1st petitioner and the respondent was solemnized on 12/2/2003. The 2nd petitioner was born in their wedlock on 23/3/2005. Their marriage was dissolved on 23/3/2010 as per the decree passed by the Family Court, Kollam in OP(HMA) No.363/2007. According to the petitioners, the 2nd petitioner is under the care and custody of the 1st petitioner. It is alleged that the respondent has sufficient means to maintain the 2nd petitioner, but he wilfully neglected to maintain her.
3. Along with the maintenance case, the petitioners filed Crl.M.P.No. 225/19 for interim maintenance. The Family Court granted `5,000/- to the 2nd petitioner as interim monthly maintenance. Since the respondent failed to pay the interim
:5: maintenance in spite of repeated directions, his defence was struck off as per the order in Crl.M.P.No.647/23. After trial, the Family Court allowed the MC and granted monthly maintenance of `5,000/- to the 2nd petitioner from the date of the petition. The respondent has preferred RPFC No.61/2024 challenging the orders passed in MC No.119/2019 as well as in Crl.M.P.No.647/23. The petitioners filed RPFC No.170/2024 dissatisfied with the quantum of maintenance granted to the 2nd petitioner.
4. I have heard both sides.
5. The paternity of the 2nd petitioner is not in dispute. The learned counsel for the petitioner in RPFC No. 61/2024 submitted that the maintenance case filed by the respondents before the Family Court is not maintainable for two reasons: (i) When the mother of the 2nd petitioner is alive, the 1st petitioner cannot maintain a petition on behalf of the minor, the 2nd petitioner. (ii) The entire dispute between the respondent and the mother of the 2nd petitioner was settled and at the time of the settlement, he had given `5,00,000/- in lieu of maintenance to the 2nd petitioner as the full and final settlement and based on the said settlement, the Lok Adalat passed an award and as such, the 2nd petitioner cannot claim maintenance.
6. So far as the first contention is concerned, it is not in
:6: dispute that the 1st petitioner is the grandmother of the 2nd petitioner. It is also not much in dispute that at the time of filing the M.C., the 2nd petitioner was under the care and custody of the 1st petitioner. The 2nd petitioner, being minor, cannot directly file a petition for maintenance. It is settled that a person who has sufficient interest in the minor can move an application seeking maintenance under Section 125 of Cr.P.C. [Ramakrishnan v. Kali 1987 KHC 618]. Therefore, the contention that the 1st petitioner has no locus standi to file a petition for maintenance on behalf of the 2nd petitioner cannot be accepted.
7. So far as the second contention is concerned, it is settled that the right of a minor child to claim maintenance from its father cannot be forfeited by virtue of an agreement/ compromise entered into between the father and the mother. When the obligation on the father to maintain his minor child is recognised by a Statute, it is a matter of public policy. A statutory right which has been conferred on a person under public policy cannot be waived by the said person by an agreement (Vikraman Nair and Another v. Aishwarya and Others 2018 (5) KHC 156). The contention of the respondent is that the matrimonial dispute between him and his wife before the Family Court was settled at the Lok Adalat and an award was passed. It is his case that as a
:7: part of the settlement, a consolidated sum of `5,00,000/- was given to the wife in lieu of maintenance of the wife and the 2nd petitioner. It is pertinent to note that the 2nd petitioner was not a party to the said compromise or in the cases between the respondent and his wife. Therefore, any compromise entered into between the respondent and his wife cannot bind the 2nd petitioner.
8. The 2nd petitioner claimed maintenance @`25,000/- per month. The Family Court granted only `5,000/- per month. Admittedly, the respondent is a pensioner. He was employed at the Military. According to the petitioners, the respondent gets a monthly pension of `30,000/- apart from `25,000/- from the financial firm run by him. The respondent has admitted that he is a pensioner. But according to him, he gets only `17,000/- per month. Ext.X1 series, the statements of account of the respondent would show that the respondent has received a sum of `35,00,000/- from the pension account as commuted pension. It is a case where the defence of the respondent was struck off. The respondent did not produce any document to prove his income. In the absence of any evidence as to the actual income earned by the respondent, the evidence given by the petitioners regarding the income of the respondent is only to be accepted.
:8: Considering the means of the respondent and the requirement of the 2nd petitioner, I am of the view that the monthly maintenance of `5,000/- granted by the Family Court is too low and it has to be enhanced to `8,000/- per month.
9. The Supreme Court in Rajnesh v. Neha [(2021) 2 SCC 324] upheld the power of the Court to strike off the defence if there was non compliance of the order of the payment of maintenance. It was held that striking off the defence can be resorted to if the court finds default to be wilful and contumacious, particularly to a dependent unemployed wife and minor child. As stated already, the respondent has ability to maintain the 2nd petitioner. The 2nd petitioner was only aged 13 years at the time of filing of the maintenance case. The 2nd petitioner was in the custody of the 1st petitioner who has no job or source of income. Even though interim maintenance was awarded by the Family Court as early as on 30/7/2022, not a single month's maintenance is paid so far. Therefore, it is evident that failure on the part of the respondent to pay interim maintenance ordered by the Family Court is wilful and contumacious. Thus, no interference is called for in the order passed by the Family Court striking off the defence. In the light of the above findings, RPFC No.61/2024 is
:9: dismissed and RPFC No.170/2024 is allowed. The monthly maintenance granted by the Family Court is modified and the respondent is directed to pay monthly maintenance of `8,000/- (Rupees Eight thousand only) per month to the 2nd petitioner from the date of the petition. Sd/- DR. KAUSER EDAPPAGATH JUDGE Rp
:10: APPENDIX OF RPFC 170/2024 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE ORDER DTD.29.11.2023 IN CMP NO.569 /2023