IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 RPFC.No. 152 of 2008() ---------------------- MC.204/2004 OF THE FAMILY COURT, KANNUR. .................... REVISION PETITIONER ------------------------------------ 1. M.C.ASHRAF,AGED 32 YEARS S/O.KUNJABDULLAH, NO OCCUPATION METHALE CHEKKOTTU (H) PUTHUR AMSOM, CHANDIYAD DESOM, THALASSERY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.C.KHALID SRI.R.O.MUHAMED SHEMEEM RESPONDENTS: ------------- 1. ASHIFA,D/O. AYISHA,AGED 4 1/2 YEARS, MINOR, REPRESENTED BY KALLINGANDAUDA AYISHA D/O. IBRAHIM, AGED 22 YEARS, RESIDING AT KOLAVATTOM,THRVAKKUM VILLAGE, THALASSERY 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.F.C.No. 152 of 2008 ------------------------------------------------- Dated this the 2nd day of June, 2008 ORDER This revision petition is directed against an order directing payment of maintenance under Sec.125 of the Cr.P.C. to the daughter of the petitioner – a minor child. 2. Paternity is admitted. The mother of the claimant, through whom this claim is preferred by the minor, has already been divorced. Admittedly, amounts have been directed to be paid under Sec.3 of the Muslim Women's Right on Divorce Act (for short `the Act') to the wife. There is no contention that the minor child is possessed of any means of income. She is therefore certainly unable to maintain herself. The petitioner was admittedly employed abroad. He now contends that he has lost his employment and he has come back to India. The learned Judge of the Family Court, on an evaluation of all the R.P.F.C.No. 152 of 2008 -: 2 :- circumstances, came to the conclusion that the claimant is entitled to maintenance at the rate of Rs.1,000/- per mensem. The petition was filed on 22/5/04. The impugned order was passed only on 16/8/07. A direction was issued to pay maintenance from the date of the petition i.e., 22/5/04. 3. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner raises challenge against the impugned order on two specific grounds. First of all, it is contended that the amount awarded as maintenance is excessive. The petitioner had purchased properties out of his hard earned money in the name of the mother of the claimant. He has also paid amounts under Sec.3 of the Act to the mother of the claimant. In these circumstances, the claimant is not entitled to make a claim. It is further contended that the petitioner has no income to make payment of Rs.1,000/- per mensem. 4. There is no material to show that the properties in the name of the mother of the claimant were purchased out of the funds of the petitioner. There are assertions on this aspect from P.W.1 – the mother of the claimant. The petitioner has not chosen to examine himself. In these circumstances, it cannot be assumed that Exts.R1 and R2 are acquisitions made in the R.P.F.C.No. 152 of 2008 -: 3 :- name of the mother of the claimant making use of the funds of the petitioner. 5. Even assuming that the petitioner had purchased the properties and paid amounts under Sec.3 of the Act to the mother of the claimant, that cannot be reckoned as sufficient discharge of the obligation of the petitioner to maintain his child under Sec.125 of the Cr.P.C. Even if the contention be correct, that cannot justify the claim for absolution from liability. 6. It is then contended that the quantum imposed is excessive. The petitioner was admittedly employed abroad. He is an able bodied person aged about 32 years. The quantum directed to be paid to the minor child aged about 5 years is Rs.1,000/- per mensem. In any view of the matter, I am unable to agree that the quantum fixed is grossly excessive or perversely disproportionate to the proved means of the petitioner as to justify the invocation of the revisional jurisdiction of superintendence and correction against the quantum fixed. The challenge raised on the first ground must, in these circumstances, fall to the ground. 7. It is next contended by the learned counsel for the petitioner that, at any rate, the direction to pay maintenance from the date of the petition is unjustified. The learned counsel R.P.F.C.No. 152 of 2008 -: 4 :- relies on the language of Sec.125(2) of the Cr.P.C. which reads as follows: “(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 proceeding, as the case may be.” 8. Only “if so ordered” need the maintenance amount be paid from the date of the petition; otherwise it need be paid only from the date of the order. There can be no dispute that ordinarily the amount is payable only from the date of the order and a further direction is necessary to oblige the petitioner to make such payment from the date of the petition. A discretion is certainly conferred on the Family Court to decide whether maintenance must be ordered to be paid from the date of the order or the date of the petition. Reasons must exist to justify the exercise of the direction to direct payment of the amount from the date of the petition. There can be no dispute on this proposition of law. The learned counsel relies on the precedents of other High Courts. I am of opinion that it is not necessary to R.P.F.C.No. 152 of 2008 -: 5 :- make specific advertance to those precedents as the principle appears to me to be very evident from the language of Sec.125 (2) of the Cr.P.C. extracted above. 9. The short question that remains to be considered is whether, in the facts and circumstances of this case, the discretion was properly exercised by the learned Judge of the Family Court. Liability is not disputed. The mother of the claimant had already been divorced. The petitioner has no semblance of a plea which can help him to claim absolution from liability. The petitioner must, in these circumstances, have made provision for maintenance of his daughter. There is no contention that the delay in the disposal i.e., from 22/5/04 to 16/8/07 is attributable in any manner to any lapse on the part of the claimant/minor. Of course, there is no specific allegation or circumstance which can help this Court now to come to a conclusion that there was any default on the part of the petitioner also. 10. Liability is admitted. The maintenance claim is for a minor child aged about 5 years. Any humane father must have made provision for the maintenance of the child. He, who has not done the same, cannot now be heard to contend that the discretion under Sec.125(2) of the Cr.P.C. has not been R.P.F.C.No. 152 of 2008 -: 6 :- exercised properly and judiciously by the learned Judge of the Family Court. I concur with the conclusion of the learned Judge of the Family Court that, in the facts and circumstances of this case, the discretion must be exercised in favour of the claimant/ minor child and the maintenance must be directed to be paid from the date of the petition. The said discretion exercised does not at all warrant revisional interference. 11. The learned counsel for the petitioner prays that great prejudice and hardship will be caused if the petitioner were sent to prison straightaway for non-payment of the entire amount due under the impugned order. I do not think it necessary to make any comments or specific directions on that aspect in this order. If substantial amounts are paid by the petitioner, the learned Judge of the Family Court shall certainly consider the plea of the petitioner for some further time to make the payment. Appropriate orders on merits shall be passed in that event. 12. This revision petition is, in these circumstances, dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.F.C.No. 152 of 2008 -: 7 :-