K.K.SAHADEVAN v. INDIRA

BY ADVS.SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENTS: --------------

INDIRA D/O.KUTTASSERI VELAYUDHAN, PORATHISSERI VILLAGE MUKUNDAPURAM TALUK, TRICHUR DISTRICT. PIN-680 001.

SHARJA, D/O.K.K.SAHADEVAN, KUTTASSERI, PORATHISSERI VILLAGE MUKUNDAPURAM TALUK, TRICHUR DISTRICT. PIN-680 001. BY SRI.M.SHAJU PURUSHOTHAMAN BY SRI.K.S.RAJESH THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(F.C.) 6 OF 2012 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE EXECUTION PETITION DT.12.8.2011 EXT.P2 : TRUE COPY OF E.A.279 OF 2011 DT.25.11.2011 IN E.P.64/11 IN O.P.804 OF 1997 ON THE FILE OF THE FAMILY COURT, TRICHUR EXT.P3 : TRUE COPY OF I.A.7535/11 DT.13.12.11 IN O.P.804/97 ON THE FILE OF THE FAMILY COURT, TRICHUR EXT.P4 : TRUE COPY OF E.A.318/11 DT.15.12.11 IN E.P.64/11 IN O.P.804 OF 97 ON THE FILE OF THE FAMILY COURT TRICHUR. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(F.C.) No.6 of 2012 R - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2012 JUDGMENT K.M. Joseph J., The petitioner has filed this petition under Article 227 of the Constitution of India. Petitioner is the father of 2nd respondent and husband of the 1st respondent. The respondent filed O.P. No.804 of 1997 claiming maintenance and other reliefs. The petition was allowed and the petitioner was directed to pay maintenance at the rate of Rs.500/- to the daughter from the date of filing of the petition i.e., 8.12.1997. It was further directed that during the period of minority of the 2nd respondent herein, the 1st respondent/ mother is allowed to receive the amount on behalf of the 2nd respondent. O.P.(F.C.) No.6 of 2012 :2:

2. The petitioner had paid the maintenance till the second respondent attained majority, it is stated. But now the daughter has filed an execution petition claiming Rs.28,285/- for the period from

7.2.2007 to 7.8.2011. Ext.P1 purports to be the said execution petition. According to the petitioner, while doing the painting work, he fell down from an up-stair portion of a building and bedridden with dis prolapsed lumbar vertebras 4th and 5th. Therefore he could not appear on 22.11.2011 before the Family Court in the execution petition. The Family Court issued arrest warrant. The petitioner filed Ext.P2 seeking withdrawal of the arrest warrant. Thereafter the petitioner filed Ext.P3, purports to be a petition for cancellation/ alteration of the order. The petitioner filed Ext.P4 seeking stay of all further proceedings till the disposal of Ext.P2. It is the case of the petitioner that in the absence of any claim of benefit under Section 125(1)(c) of Criminal Procedure, the second respondent is not entitled to get maintenance from the date of attaining majority. It is stated that Ext.P3 petition ought to have O.P.(F.C.) No.6 of 2012 :3: been posted to an earlier date and the Family Court ought to have been allowed Exts.P2 and P4 petitions. The petitioner has paid maintenance till 2007, it is stated. It is also the petitioner's case that in view of the proviso to Section 125(3) of the Code of Criminal Procedure, the daughter is not entitled to get the whole amount as shown in Ext.P1 from the petitioner.

Learned counsel for the 2nd respondent would, on the other hand, point out that it is not in a proceeding under Section 125 that the Court passed the order directing the maintenance. Instead he draws our attention to the powers conferred under The Hindu Minority & Guardianship Act, 1956. He would further contend that in terms of the said Act, till the daughter is married she has a right to get the maintenance. In this case, the second respondent/daughter is neither married nor employed, he submits.

Learned counsel for the petitioner would submit that the petitioner has filed an objection and it was only on account of the fall of the petitioner while he was at work that he could not appear O.P.(F.C.) No.6 of 2012 :4: before the Family Court. In such circumstances, after considering the contentions, we pass the following order: Interim order passed by this Court staying all further proceeding will continue to hold good till the Family Court considers and takes a decision on the objection filed by the petitioner to the E.P. This will be subject to the condition that the petitioner will deposit a sum of Rs.4,000/- (Rupees four thousand only) within a period of three weeks from today and upon deposit the same can be withdrawn by the 2nd respondent. We make it clear that we are not expressing any opinion regarding the merits of the case. The Original Petition is disposed. Sd/- K.M. JOSEPH, (JUDGE) Sd/- M. L. JOSEPH FRANCIS, (JUDGE) dl/