Mother can not refuse to pay maintenance to children on the ground that she is willing to take custody of children

It is also brought to the notice that so far the petitioner has not paid any amount towards the maintenance to her children, the respondents 2 and 3. Her counsel has expressed only her willingness, seeking custody of the minor respondents, which would not be a defence to justify the non-payment of maintenance to her children. Having considered the pleadings of both the parties, the custody of the minor respondents 2 and 3 and the income of the petitioner and the first respondent, this Court is of the view that there is no error or infirmity in the impugned order, so as to warrant any interference by this Court.

Madras High Court

Pakialakshmi vs Sedouramane on 29 August, 2013

THE HONOURABLE MR.JUSTICE S.TAMILVANAN
Citation;AIR 2014(NOC) 53 MADRAS

Heard both the learned counsel appearing for the petitioner as well as the respondents.

2. This Civil Revision has been preferred under Article 227 of the Constitution of India, challenging the order, dated 30.11.2010 made in I.A.No.1833 of 2007 in M.O.P.No.155 of 2005 on the file of the Family Court, Puducherry.

3. It is an admitted fact that the petitioner is the wife of the first respondent and mother of the minor respondents 2 and 3. M.O.P.No.155 of 2005 was filed by the first respondent against the petitioner herein, seeking dissolution of marriage, that was solemnized between the petitioner and the first respondent on 01.09.1995. During the pendency of the said M.O.P.No.155 of 2005, Interlocutory Application in I.A.No.1833 of 2007 was filed under Section 24 of the Hindu Marriages Act, 1955, seeking maintenance, at the rate of Rs.10,000/- per month for the minor second and third respondents, stating that the first respondent herein as father and guardian of the said minor respondents.

4. Having considered the facts and circumstances and the pleadings of both the parties, the Court below passed the impugned order, dated 30.11.2010, whereby directed the petitioner, being the mother of the minor respondents 2 and 3 to pay Rs.5,000/- per month to both the minor respondents 2 and 3 towards their maintenance from 03.12.2007.

5. It is also relevant to note the order, dated 18.11.2011 passed in I.A.No.752 of 2006 in M.O.P.No.155 of 2005, permitting the petitioner, mother of the minor respondents 2 and 3 to visit the said children. It is an admitted fact that the minor respondents 2 and 3 are in the custody of their father, the first respondent herein, who is a physically handicapped person, an Upper Divisional Clerk, working under the Government of Union Territory of Puducherry.

6. Learned counsel appearing for the petitioner submits that long back, the first respondent forcibly took away the children to his custody and if maintenance is awarded to him, there is a likely-hood of misusing the money and that the petitioner is willing to deposit the money for the college expenses of the respondents 2 and 3.

7. However, the aforesaid arguments is not legally sustainable, since the second respondent is 15 year old boy and the third respondent is 9 years old and both are doing school studies in the care and custody of the first respondent. In the revision relating to award of maintenance, it would not be relevant to raise a defence of seeking custody of children, based on the allegation that the first respondent had forcibly taken away the children to his custody. Though this Court advised both the parties to restore their relationship as husband and wife, at least considering the welfare of the children, it was not possible.

8. Hence, in this revision, this Court has to decide only the correctness of the impugned order passed by the Court below. The respondents 2 and 3 are minor children in the custody of the first respondent, father. The mother is also duty bound to maintain the children, hence, awarding maintenance to the children is only in accordance with law and therefore, the correctness of the quantum alone has to be decided by this Court in this Revision. It is not in dispute that the petitioner is earning approximately, a gross salary of Rs.50,000/-. It would not be construed as an exorbitant amount, awarding maintenance at Rs.2,500/- per month to each of the minor respondents 2 and 3. Therefore, so far as the quantum of maintenance is concerned, I could find no error or infirmity in the order and it would not be fair on the part of the petitioner to suggest that she would pay the amount only if they proceed their higher education in the college or thereafter, as per the averments of the petitioner, seeking permission to invest the maintenance amount is also not justifiable.

9. It is also brought to the notice that so far the petitioner has not paid any amount towards the maintenance to her children, the respondents 2 and 3. Her counsel has expressed only her willingness, seeking custody of the minor respondents, which would not be a defence to justify the non-payment of maintenance to her children. Having considered the pleadings of both the parties, the custody of the minor respondents 2 and 3 and the income of the petitioner and the first respondent, this Court is of the view that there is no error or infirmity in the impugned order, so as to warrant any interference by this Court.

10. In the result, this Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. The petitioner is directed to deposit the arrears of maintenance amount, as awarded by the Court below, within three months from the date of receipt of a copy of this order and also directed to pay the regular monthly maintenance without any default. However, there is no order as to costs. 29-08-2013

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