IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 OP (FC).No. 1016 of 2011(R) --------------------------- OP.26/2011 of FAMILY COURT,TRIVANDRUM .................... PETITIONER ------------------------------ BINULAL K., DEEPA BHAVAN, CHEMPANCODE, AMBALATHINKALA P.O., KATTAKADA, THIRUVANANTHAPURAM. BY ADV. SRI.A.RAJASIMHAN RESPONDENT(S): --------------- ROOPA R.S., D/O.SALEENA, NOOPURA, ERUVAIKONAM, MULLUVILA P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SMT.K.T.LILLY @ LILLY JAMES SMT.P.F.ROSY THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN OP(FC).1016/11 PETITIONER'S EXHIBITS: EXT.P1:TRUE COPY OF OP(HMA) NO.1459/10 PENDING BEFORE THE FAMILY COURT, NEDUMANGAD. EXT.P2: TRUE COPY OF THE AFFIDAVIT IN MC.NO.87/10 FILED BEFORE JFMC-II NEYYATTINKARA. EXT.P3: TRUE COPY OF OBJECTION FILED IN MC.NO.87/10 BEFORE JFMC-II NEYYATTINKARA. EXT.P4: TRUE COPY OF THEOP(G&W) NO.26/11 PENDING BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P5: TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN OP(G&W). 26/11. EXT.P6: TRUE COPY OF THE I.A.NO.193/11 FILED BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM. EXT.P7: TRUE COPY OF ORDER DATED 17.2.2011 OF FAMILY COURT, THIRUVANANTHAPURAM. /TRUE COPY/ PA TO JUDGE. THOTTATHIL B.RADHAKRISHNAN & K.SURENDRA MOHAN, JJ. ----------------------------------- O.P(FC).No.1016 OF 2011 ------------------------------------ Dated this the 12th day of August, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. “C.R.” 1.The husband challenges an order of the family court granting interim maintenance to the wife, interim maintenance to the child and Rs.5,000/- as litigation expenses, pending an application filed by the husband for custody of his one year old son, invoking the provisions of the Guardians and Wards Act, 1890, for short, 'G & W Act'. 2. The order for payment of maintenance to the wife stands stayed by this Court at the stage of admission with the clarification that the order of stay will not operate as regards the maintenance for the child. OPFC.1016/11 2 3.The baby boy, about one year old, is granted Rs.2,000/- per month as maintenance. In our view, that is never against the interest of its father. In fact, he does not challenge that part of the order. 4.Though the learned counsel for the petitioner husband argued that the order to pay Rs.5,000/- is as costs and cannot be sustained, it having been passed on the first date of posting of the case before the family court, we do not see that it is an order for costs. It is an order for litigation expenses. Therefore, we see no legal infirmity in that, including its issuance on the first date of hearing, upon appearance of the wife. 5.On to the order for interim maintenance to the wife, it has to be noted that the main matter pending before the family court is only an application filed by the husband under the provisions of the G & W Act for custody of the child. It is not a petition for divorce. It is not a litigation claiming maintenance. OPFC.1016/11 3 The G & W Act does not contain any provision similar to that in Section 24 of the Hindu Marriage Act, 1955; Section 36 or 41 of the Indian Divorce Act, 1869; Section 38 of the Special Marriage Act, 1954 or Section 39 of the Parsi Marriage and Divorce Act, 1936. Unlike in those legislations which provide for issuing orders for making provision for interim maintenance or alimony pendente lite to the wife, there is no such provision in the G & W Act. The reason for this is obvious. The proceedings under the G & W Act is not necessarily a litigation relating to or generated by the matrimonial tie and the matrimonial home. Under the G & W Act, proceedings can be had even in different other situations as are contemplated by that legislation. It does not necessarily depend upon any relationship arising out of a marriage. In the absence of any enabling provision in the G & W Act entitling the wife to claim maintenance for herself pending consideration of an application under the G & W Act in relation to the child, we do not find any substantive right in that regard. Hence, the G & W Act does not provide for issuing any OPFC.1016/11 4 order for maintenance, including interim maintenance or pendente lite alimony in favour of the wife, though she may be a party to the proceedings. We, therefore, see no statutory support for the interim order for maintenance in favour of the wife in an application filed by the husband for custody of the child. 6. Learned counsel for the respondent-wife, however, pointed out that proceedings for maintenance is enjoined by clause (f) of Section 7(1) of the Family Courts Act, 1984. That provision only enjoins that the family court has jurisdiction to decide a suit or proceeding for maintenance and it operates to exclude the jurisdiction of other courts. All that is provided for in Section 7 is that actions enumerated therein shall be instituted in the family court. Therefore, an application or suit for maintenance could be filed in the nature of an application or petition in the family court. What is thereby instituted is a litigation claiming maintenance in terms of the legal rights of the claimants, available on the basis of substantive law which OPFC.1016/11 5 confers the right to sue. But in the absence of any provision of law authorising the wife to make such an application, pending consideration of the husband’s petition for custody of the child, we do not find any substantive right being granted by the provisions of the Family Court Act to that effect. Thus the argument on the basis of the Family Courts Act fails. 7. It is further pointed out on behalf of the respondent that in view of the order that is now challenged, the wife has not pressed the request by her for maintenance under the provisions of the Protection of Women from Domestic Violence Act, 2005 pending before the Judicial First Class Magistrate Court, Neyyattinkara. This situation can be rectified appropriately. 8.In the result, this original petition is ordered as follows: (i)The impugned order, to the extent it awards interim maintenance to the respondent wife, is set aside. OPFC.1016/11 6 (ii)The Judicial First Class Magistrate, Neyyattinkara will permit the respondent wife to move such request as may be permissible in law to revive any request by her for maintenance in the course of proceedings under the Protection of Women from Domestic Violence Act, 2005, now that the order in her favour by the Family Court in that regard is being vacated thereby. (iii)The writ petitioner husband will honour the impugned order to the extent it covers maintenance for the child as also litigation expenses. (iv)Parties to bear their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- K.SURENDRA MOHAN, Judge. kkb.16/8.