question that arises for consideration is, whether the
dismissal of the earlier claim for maintenance
allowance under Section 125 of the Cr.P.C. would bar a
subsequent claim for maintenance allowance under the
same provision. Indisputably, the right to claim
maintenance allowance under Section 125 of the Cr.P.C.
is a recurring statutory claim. In the case of recurring
claims, the principles of res judicata or estoppel has
no application at all on a fresh cause of action or
changed circumstances. In this analysis, I hold that
the dismissal of the earlier M.C. on the evidence of
payment of maintenance allowance at that time could
not bar a subsequent claim on change of circumstances
which would give rise to a fresh cause of action. The
living standard/status of the wife and children which
spell out their ability to maintain themselves and the
means of the husband are the factors, which would
determine the entitlement of maintenance allowance
and the quantum of amount under Section 125 of the
Cr.P.C. and these factors are always fluctuating in
accordance with the change of circumstances. Needless
to say, change of circumstances will give rise to a
fresh cause of action. More over, being a claim under
social welfare legislation, the right to claim
maintenance under Section 125 of the Cr.P.C. has to be
construed in view of the object of the said provision,
i.e., prevention of vagrancy and destitution. Besides,
the above view further gets assurance from Section 127
of the Cr.P.C., which recognises alteration of the
quantum of allowances on proof of change in
circumstances.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE K.HARILAL
1ST DAY OF JUNE 2015
RPFC.No. 170 of 2015
SANEERA,
Vs
ABDURAHIMAN,
Since these revision petitions are filed
challenging the very same order passed in
M.C.No.302/2013 on the files of the Family Court, Tirur,
by the petitioners and respondent respectively
therein, both these revision petitions are heard
together and disposed of accordingly, by a common
order.
2. The revision petitioners in R.P(FC).No.170/2015
are the wife and daughters of the revision petitioner
in R.P(FC).No.173/2015. They filed the above M.C. under
Section 125 of the Cr.P.C. claiming maintenance
allowance from the revision petitioner in R.P(FC).
No.173/2015. The Family Court allowed the M.C.
directing the petitioner in R.P(FC).No.173/2015 to pay
monthly maintenance allowance at the rate of
Rs.3,000/- to the first respondent and Rs.2,000/- each
to the second and third respondents therein. R.P(FC).
No.170/2015 is filed challenging the inadequacy of the
quantum of maintenance allowance granted under the
impugned order and R.P(FC).No.173/2015 is filed
challenging the legality of the entitlement of
maintenance allowance and the correctness of the
quantum fixed by the court below. The parties are
referred to as in the M.C.
3. The petitioners, who are the wife and daughters
of the respondent, filed the above M.C. claiming
maintenance allowance under Section 125 of the Cr.P.C.
According to the first petitioner, she is the legally
wedded wife of the respondent and the petitioners 2 and
3 are the children born in the said wedlock. So, the
respondent is liable to maintain them; but he neglected
to maintain them and refused to pay maintenance
allowance. The first petitioner has no job or any
source of income and she is unable to maintain herself
and the respondents 2 and 3; whereas, the respondent is
working abroad at Sharjah as a heavy vehicle driver
and earning Rs.1 lakh per month. He is also having
landed property and business. So, they claimed
maintenance allowance at the rate of Rs.5,000/- each
per month.
4. The respondent contended that the petitioners
are not entitled to get maintenance allowance on the
reason that earlier M.C.No.579/2007, claiming
maintenance under Section 125(1) of the Cr.P.C., filed by
the petitioners was dismissed by the same court. The
said dismissal of the claim will be a bar to file a fresh
M.C. seeking the very same relief. It is also contended
that he is not a heavy vehicle driver as alleged by the
petitioners and he is not getting so much amount as
claimed by them. So, the quantum of maintenance
allowance claimed by the petitioners are exorbitant
and disproportionate with his actual income. After
considering the rival pleas and evidence let in by both
parties, the court below found that the petitioners are
entitled to get maintenance allowance notwithstanding
the dismissal of the earlier M.C.No.579/2007 claiming
similar reliefs. The respondent was directed to pay
maintenance allowance as referred above.
5. Heard the learned counsel for the petitioners
and the learned counsel for the respondent. The
learned counsel for the petitioners contended that the
quantum of maintenance determined by the court below
is inadequate to meet their living costs and
disproportionate with the income of the respondent.
But the learned counsel for the respondent contended
that the M.C. itself was not maintainable as the same
was barred by the dismissal of the earlier
M.C.No.579/2007. So also, the quantum of maintenance
allowance fixed by the court below is excessive and
disproportionate with the income of the respondent.
6. Going by the impugned order, it is seen that the
marital status of the first petitioner and the
paternity of the children are not disputed. It is the
case of the petitioners that he has neglected to
maintain them and refused to pay maintenance
allowance from 2007 onwards. Though the respondent
contended that he has been maintaining the
petitioners, the available evidence on record for this
is Ext.D3 only. It is not disputed that in the year 2007
the petitioners had filed M.C.No.579/2007 claiming
maintenance allowance from the respondent under
Section 125 of the Cr.P.C. and that the claim was
rejected on the reason that it has come out in evidence
that in the year 2007 he had sent a substantial amount
to the petitioners as maintenance allowance. The
finding in the order dismissing M.C.No.579/2007 was that
in view of the payment of maintenance allowance
proved by the respondent, the petitioners are not
entitled to get further maintenance allowance.
However, the said order passed in M.C.No.579/2007 is
still under challenge in revision.
7. In view of the above submissions, the short
question that arises for consideration is, whether the
dismissal of the earlier claim for maintenance
allowance under Section 125 of the Cr.P.C. would bar a
subsequent claim for maintenance allowance under the
same provision. Indisputably, the right to claim
maintenance allowance under Section 125 of the Cr.P.C.
is a recurring statutory claim. In the case of recurring
claims, the principles of res judicata or estoppel has
no application at all on a fresh cause of action or
changed circumstances. In this analysis, I hold that
the dismissal of the earlier M.C. on the evidence of
payment of maintenance allowance at that time could
not bar a subsequent claim on change of circumstances
which would give rise to a fresh cause of action. The
living standard/status of the wife and children which
spell out their ability to maintain themselves and the
means of the husband are the factors, which would
determine the entitlement of maintenance allowance
and the quantum of amount under Section 125 of the
Cr.P.C. and these factors are always fluctuating in
accordance with the change of circumstances. Needless
to say, change of circumstances will give rise to a
fresh cause of action. More over, being a claim under
social welfare legislation, the right to claim
maintenance under Section 125 of the Cr.P.C. has to be
construed in view of the object of the said provision,
i.e., prevention of vagrancy and destitution. Besides,
the above view further gets assurance from Section 127
of the Cr.P.C., which recognises alteration of the
quantum of allowances on proof of change in
circumstances.
8. Coming to the correctness of the quantum of
amount, it is the case of the petitioners that the
respondent is getting Rs.1 lakh as a driver by
profession. But, no evidence had been adduced to
substantiate the said claim. On the other hand, the
respondent himself admitted that he is a driver by
profession. But he has not produced any evidence to
show that he is not getting so much amount as
contended by the petitioners. Income is a fact which
lies exclusively within the knowledge of the person
who gets it. So, the failure to adduce sufficient
evidence to prove his exact income by the respondent
invites an adverse inference under Section 114(g) of the
Indian Evidence Act against him, i.e., the evidence
which could be and is not produced would, if produced,
be unfavourable to the person who withholds it. The
respondent has no case that he is unhealthy or
physically disabled or incapacitated to do work so as
to earn livelihood for his family. A husband is liable
to pay maintenance allowance to his wife and children
in accordance with their family status, standard of life
and day-to-day needs, and they have the right to live
with the standard of life on a par with that of
husband/father. It is seen that the petitioners 2 and 3
are school going children and a considerable amount is
required for their educational expenses also. Having
regard to the said facts, I find that the quantum of
maintenance allowance determined by the court below
is just and reasonable, warranting no interference
under the revisional jurisdiction.
In the result, both the revision petitions are
dismissed.
Sd/-
K. HARILAL, JUDGE
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