IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 RPFC.No. 200 of 2010 ---------------------------- MC.346/2003 of FAMILY COURT, THRISSUR .................... REVISION PETITIONER/PETITIONER: P.N.NARAYANA MENON, AGED 65 YEARS, C/O.C.GOVINDANKUTTY NAIR, CHIRAPURATH HOUSE, OLLUKKARA DESOM, KALATHOD P.O., THRISSUR DISTRICT. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT/RESPONDENT: T.MANOJ MENON, S/O.P.V.NARAYANA MENON, THATTATT HOUSE, VETTIKKAL, P.O.MANNUTHY, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.Satheesachandran, J. ------------------------------------------- R.P.(FC)No.200 of 2010 ------------------------------------------- Dated this the 11th day of August, 2011 ORDER The challenge in the revision is against the order passed by the learned Judge, Family Court, Thrissur in a proceedings under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). Revision petitioner, the petitioner in the above proceedings, is the father of the respondent. The respondent is employed in a public sector undertaking, namely, BSNL. Petitioner has another daughter also apart from the respondent. Alleging neglect and refusal to maintain by the respondent/son and also inability to maintain himself, the petitioner/father filed the petition before the Family Court seeking maintenance at the rate of `.2,500/- per month from the respondent. Apart from the monthly salary, the respondent is possessed of immovable property worth more than Rupees ten lakhs was the case of the petitioner/father. 2. The claim was resisted by the respondent contending that the petitioner is a retired personnel from a private company, RP(FC) 200/2010 2 he has deserted his legally wedded wife and now cohabiting with another woman and taken care of by her and various proceedings are pending against him, including a criminal case for the offence under Section 494 of Indian Penal Code, as he is living in adultery. While the marriage with his mother is subsisting, he has married the lady with whom he is presently living and they are living as husband and wife under the same roof and that he is a drunkard and leading an immoral life was the case of the son to contend that the petitioner/father is not entitled to claim any maintenance from him. 3. On the materials placed by both sides, learned Judge, Family Court, found merit in the objections raised by the respondent/son to conclude that the circumstances presented and established in the case disentitle the petitioner to claim maintenance from his son. The propriety, legality and correctness of that order is challenged in the revision. 4. I heard counsel on both sides. 5. The learned Judge, Family Court has overlooked the statutory provision covered under Section 125 of the Code in adjudging the claim for maintenance canvassed by the RP(FC) 200/2010 3 petitioner/father as against his son is the submission of the learned counsel appearing for the petitioner/father to assail the impugned order as unsustainable. On the other hand, learned counsel for the respondent contends that totality of the facts and circumstances involved in the case, after being meticulously considered and also on satisfied from the evidence that the petitioner/father is not now placed in a situation where he required no maintenance from his son, as he has shelter and care from another lady, the learned Judge, Family Court has turned down his claim for maintenance and that order does not call for interference in exercise of the revisional jurisdiction. 6. Going through the order passed by the learned Judge, Family Court, it is seen that the claim of the father was appreciated only with respect to the imputations and aspersions made over his character and conduct and not with reference to the legal principles applicable when a claim is set up and challenged under Section 125 of the Code. The very purpose of incorporating Section 125 in the Code and vesting the Magistrate with the jurisdiction to pass orders thereof is to provide succor to the destitutes, and avoid vagrancy. The legal RP(FC) 200/2010 4 entitlement of the party, a claimant, to claim maintenance under the aforesaid provision of the Code, does not depend upon his conduct or character, but subject to the conditions and stipulations provided by law. So far as a father, to claim maintenance against his children, the only condition imposed under Section 125 of the Code is his inability to maintain himself. No doubt, the means of the son or daughter, from whom such claim is canvassed, has to be looked into, where a claim by a parent, father or mother, is raised on the ground of inability to maintain themselves. 7. The claim of the father in the present case was appreciated with reference to the imputations levelled against his conduct by the respondent/son, but not with regard to the sustainability of the claim, examining the question whether he is unable to maintain himself. The learned Judge, Family Court has commented that petitioner is a man who has deserted his wife and is living in adultery. His conduct is such that he is not entitled to claim maintenance from his son, is the further observation. No finding on the material question whether he is able to maintain himself has been made in the case. No doubt, RP(FC) 200/2010 5 his conduct, and other relevant circumstances placed before the court, have to be taken note of in fixing the quantum of maintenance, but not for adjudging the claim as such. The circumstance that he has married another woman, if proved, and now having shelter with her in a house owned by that lady, all these factors can be looked into in considering what are his needs and, more particularly, whether he can maintain himself with or without the assistance of any other person. Without making any enquiry thereof, solely on the basis of his conduct, even if it is repulsive, his claim for maintenance is not liable to be rejected. The order passed by the court below, impugned in the revision, is patently unsustainable. 8. Setting aside the order, the Family Court is directed to re-examine the matter and pass appropriate orders taking note of the observations made above. Parties are directed to appear before the Family Court on 20.09.2011. Revision is disposed of. (S.S.Satheesachandran, Judge) tkv