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2015 DIGILAW 680 (KER)

Surendran K. v. Aswin K. S.

2015-06-12

K.HARILAL

body2015
ORDER : K. Harilal, J. 1. The revision petitioner is the respondent in MC No. 160/10 on the files of the Family Court, Kozhikode. The above petition was filed under Section 125 of the Code of Criminal Procedure by the respondents herein, who are the children of the petitioner, claiming maintenance allowance @ Rs. 3,500/- each as monthly maintenance allowance. According to the respondents, the petitioner has neglected them and refused to pay maintenance allowance to them from April, 2008 onwards. The petitioner is employed as Ticket Examiner and the mother is employed in Railway service. According to the respondents, they were living along with their parents in the Railway Quarters upto 2008 and thereafter the father was transferred to Palakkad Division. Thereafter the relationship between the father and the mother got strained and the father is living separately at Palakkad. Now the respondents are totally depending upon their mother for their needs. But she is unable to maintain herself and the respondents with the income derived from her salary; whereas the petitioner has a monthly salary of Rs. 19,751/- and his salary is more than that of their mother. Both respondents require Rs. 3,500/- each per month. The revision petitioner admitted the paternity of the respondents and it has come out in evidence that he has not paid any amount towards their maintenance after 2008. According to the petitioner, their mother is receiving more salary and she is able enough to maintain them. In addition to that, the respondents are getting educational grant from the Railway. It is alleged that the mother was not willing to live with him and he made all the earnest attempts to shift the wife and children to Palakkad where he is employed. According to him, only because of the adamant stand taken by the mother of the respondents they were constrained to live without the company of their father. After considering the rival pleas and evidence on record adduced by both parties to support the said pleas, the Court below directed the petitioner to pay maintenance allowance @ Rs. 1,500/- each to the respondents. The correctness of the quantum of maintenance allowance determined by the Court below is mainly challenged in this revision petition. 2. After considering the rival pleas and evidence on record adduced by both parties to support the said pleas, the Court below directed the petitioner to pay maintenance allowance @ Rs. 1,500/- each to the respondents. The correctness of the quantum of maintenance allowance determined by the Court below is mainly challenged in this revision petition. 2. Going by the impugned order, it is seen that the petitioner has admitted the paternity of the respondents and also the fact that he has not paid any amount towards maintenance allowance to them after 2008. According to him, only because of the adamant stand taken by the mother of the respondents, the relationship got strained and he was compelled to live separately. But I am of the opinion that the strained relationship between the father and mother is insignificant and irrelevant, when considering the right to maintenance of the children. Under Section 125 of the Cr.P.C., primarily, the father is liable to pay maintenance allowance to his children, irrespective of the strained relationship between father and mother. The primacy of the father in maintaining the entire family is evident from the liability to maintain the wife also. 3. In the instant case, the petitioner has no case that the respondents have any income or source of income. Admittedly, they are students studying for various courses. It has come out in evidence that one of the respondents will get Rs. 870/- once in three months for educational expenses. But that amount is not sufficient to meet the educational expenses of a school going student. Elder son is aged 16 years and he is studying for Plus Two course and the second child is studying in 9th standard. Indisputably, a substantial amount is required for their monthly maintenance allowance. It has also come out in evidence that the mother, who was examined as RW 1 is getting only Rs. 14,187/- and the same amount is not sufficient to meet the living and educational expenses of a family consists of a mother and two school going children. Coming to the salary of the petitioner, as evidenced by Ext. P2 salary slip, it could be seen that gross pay of RW 1 is more than that of PW 1, which is Rs. 21,144/-; but, he is remitting an amount of Rs. 10,798/- in PF Account and Rs. 1,994/- to LIC. 4. Coming to the salary of the petitioner, as evidenced by Ext. P2 salary slip, it could be seen that gross pay of RW 1 is more than that of PW 1, which is Rs. 21,144/-; but, he is remitting an amount of Rs. 10,798/- in PF Account and Rs. 1,994/- to LIC. 4. What is contemplated under Section 125(1) of the Cr.P.C. is 'sufficient means' only and it means, the 'means' to maintain his wife, children and parents. In the case of a salaried employee, what requires to be taken into account under the expression 'means' is his total earning capacity; that is, the gross income. The salaried employee cannot wriggle out of the statutory liability to pay maintenance allowance by way of availing a huge loan and fixing a substantial amount of his salary as monthly instalments for repayment. Similarly, it cannot be confined to or limited to net salary, which is getting in hand after various deductions such as GPF, Group Insurance Scheme, LIC Premium, State Life Insurance, GPF loan and various other loans. All the above deductions are long term savings and he will get back the same with attractive interest at the end of his service and he may get some portion of such amounts in advance in accordance with concerned Rules. Therefore, such deductions cannot be deducted or excluded from the consideration of his 'means' to pay maintenance allowance. Put it differently, the term 'means' includes all the savings also. Even if a considerable amount is being deducted toward Provident Fund, General Group Insurance Scheme, LIC Premium, State Life Insurance, GPF loan or any statutory deductions, except income tax or profession tax, that amount cannot be excluded from reckoning sufficient means to pay maintenance allowance to the wife and children or parents. It is for him to control his expenditure and fix the quantum of statutory deduction enabling him to maintain his wife, children and parents, in accordance with their needs, without fail, and he cannot escape from the liability under huge monthly deductions. In the above view of the matter, it can be held that the petitioner is getting Rs. 21,144/- per month. The children have the right to live with the standard of life on a par with that of their father and they are entitled to get maintenance allowance in accordance with that status and standard. In the above view of the matter, it can be held that the petitioner is getting Rs. 21,144/- per month. The children have the right to live with the standard of life on a par with that of their father and they are entitled to get maintenance allowance in accordance with that status and standard. In this analysis, I find that the quantum of maintenance determined by the Court below is reasonable, just and proper and no interference is called for. This RP (FC) is dismissed.