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2018 DIGILAW 406 (KER)

Viswanathan P. K. v. Geethakumari

2018-06-01

SUNIL THOMAS

body2018
ORDER : 1. The revision petitioner challenges the order of the Judicial First Class Magistrate Court-II, Palakkad in MC.No.173/2014, by which he was directed to pay maintenance to his wife and children, in an application filed under section 12 of Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act). 2. The first respondent herein who is admittedly the wife of the revision petitioner filed the application contending that the revision petitioner harassed her mentally and physically and refused to maintain her and two children. It was alleged that he had committed acts of domestic violence. She claimed maintenance @ Rs.5000/- for herself and for each of the child. The revision petitioner appeared and contended that he was aged 63 years, that he was thrown out of the house and that he had no sufficient income to maintain wife and children. It was also contended that the first respondent herein was employed as an LIC agent and also as a sales officer in a jewellery. The elder daughter used to take tuition and earned more than Rs.20,000/- every month. 3. Both sides let in evidence to prove the rival claims. The court below, on an evaluation of the available materials concluded that the first respondent was unable to maintain herself and the children and directed the revision petitioner to pay maintenance @ Rs.3000/- each to the wife and the first child and Rs.1000/- to the second child. Aggrieved by the above order, the revision petitioner has preferred this revision. 4. Heard both sides and examined the records. 5. Three specific contentions were raised by the learned counsel for the revision petitioner. The first contention was that both the children have attained the age of majority and they did not fall within the definition of child as contemplated under the Domestic Violence Act. It was further contended that the elder child attained the age of majority even at the time of institution of the proceedings and the second child attained majority during the subsistence of the application. Hence it was contended that they were not entitled for maintenance. It was secondly contended that since they had attained the age of majority, they ought to have been made as party to the proceedings independently. On the other hand, the mother sought maintenance on behalf of the children. Hence it was contended that they were not entitled for maintenance. It was secondly contended that since they had attained the age of majority, they ought to have been made as party to the proceedings independently. On the other hand, the mother sought maintenance on behalf of the children. The third contention set up by the learned counsel for the petitioner was that evidence on record showed that the first respondent was earning some income, which was not disclosed in the application for maintenance. It was contended that since she had sufficient means, the revision petitioner was not obliged to maintain the wife. 6. The learned counsel for the first respondent referred to the definition of the child as available under section 2 (b) of the Domestic Violence Act. The contention of the learned counsel for the first respondent was that though the definition of child meant any person below the age of eighteen years and included any adopted, step or foster child, it was subject to the opening words in section 2 that “In this Act, unless the context otherwise requires”. It was contended that in the light of above, the term child should obtain a liberal interpretation and explanation, in the context in which it was used. The learned counsel, in this regard, invited my attention to section 3 (b), section 20 and section 21 (v) of the Hindu Maintenance and Adoptions Act. It was contended that the term maintenance in section 3 (b) of the said Act also included, in the case of an unmarried daughter, reasonable expenses of incident to her marriage. It was contended by the learned counsel that section 20 of the Hindu Maintenance and Adoptions Act, referred to the maintenance of children and aged parents. Under section 20 (3), an obligation was cast on a person to maintain his unmarried daughter, who was unable to maintain herself out of her own earnings or other property. 7. The learned counsel relied on the decision of this court in Ismayil v. Fathima ( 2011 (4) KLT 40 ), wherein the Division Bench reiterated the obligation of every father, irrespective of his caste or religion, to maintain an unmarried daughter. It was contended that it enforced on the father an obligation to give in marriage, a daughter who had attained the age of 18 years. It was contended that it enforced on the father an obligation to give in marriage, a daughter who had attained the age of 18 years. It was contended that sections 3 and 20 of Hindu Maintenance and Adoptions Act read along with the decision in Ismayil's case, beyond any doubt established that the father had an obligation to give a child in marriage on attainment of age of 18 years and in the case of delay correspondingly, he had an obligation to maintain her, contended the learned counsel for the respondents. 8. Elucidating the above arguments, it was contended by the learned counsel that in the above circumstances, in the context of which section 2 (c) of the Domestic Violence Act was sought to be implemented it should obtain a wider them contextual interpretation and necessarily, the maintenance to the child should include, in the case of unmarried child, maintenance till her marriage. 9. The aid sought by the learned counsel with reference to Ismayil's case seems to be out of context. That was a case wherein referring to the various personal laws, the court concluded that irrespective of whether a statue oblige or not, every father has an obligation to maintain his unmarried daughter and to give the child in marriage on attainment of age of 18. It was held that the unmarried daughter was entitled for marriage expenses. That also does not mean that if the child remains unmarried even after completion of age of 18, the father has an obligation to pay monthly maintenance to her. The interpretation to the contra made by the learned counsel for the respondents does not appear to be convincing in that context. 10. Evidently, the contention of the learned counsel for the revision petitioner is that the term child as available in the definition of Domestic Violence Act with reference to opening words of “In this Act, unless the context otherwise requires”, means an interpretation depending on the facts and circumstances of the case to which the provisions of the Act was sought to be applied. 11. The above argument does not appear to be attractive. 11. The above argument does not appear to be attractive. The opening word “unless the context otherwise”, means that insofar as any of the definition clauses mentioned in section 2 is used or employed in any other part of the Act, wherein the context demands any other meaning, the definition clauses as mentioned therein should receive the meaning as defined in the Act. It does not mean that the definition clauses should obtain an interpretation, which suit the facts and circumstances of the case, that too depending on the personal law of the parties, D.V.Act being a secular statute. It is the context in which the statue has employed the word, that should receive the contextual interpretation. 12. The contention of the learned counsel for the respondents with reference to section 3 and section 20 and 21 (v) of the Hindu Maintenance and Adoptions Act has no application to the facts of this case. Those are the provisions specifically applicable to the Act alone. It cannot be brought in to supplement the provisions of Protection of Women from Domestic Violence Act, 2005. The Domestic Violence Act is a statute by itself and the words and definitions used therein unless they are ambiguous and calls for any aid from external source needs to be interpreted in the context in which the words are employed in the statue. In other words, the definition of the term child as is available in the Domestic Violence Act is so clear, and for the purpose of interpreting it, an external aid, in the form of an definition and provision used in another statute, though may be applicable to the party considering their personal law, need not be brought in. 13. It is clear that the child as defined in the Domestic Violence Act specifically refers to any person below the age of 18 years. These scope of the terms is clear, categoric and unambiguous. There is no scope for any other interpretation. 13. It is clear that the child as defined in the Domestic Violence Act specifically refers to any person below the age of 18 years. These scope of the terms is clear, categoric and unambiguous. There is no scope for any other interpretation. This seems to be clear from the decision reported in (Muhammed v. Kunhayisha 2003 KHC 1076 : 2003 (2) KLJ 629 ), in which the learned Single Judge of this Court while invoking section 125 Cr.P.C held that the language of section 125 Cr.P.C does not permit a construction that the status of a major daughter as an unmarried person can by itself be construed as physical or mental abnormality or injury sufficient to bring her care within the sweep of S.125(c) beyond for the statute for meant. It was categorically held that whatever be the religion of the parties, the language of the statute did not permit an unmarried major daughter to be brought in the purview of section 125 Cr.P.C, on the mere ground that she was unmarried. This equally applies to a case under section 2 (b) of the Domestic Violence Act also. This view was later affirmed by a Division Bench of this court in (Cholamarakkar and Another v. Pathummamma @ Pathumma and Another 2008 (3) KHC 973 ). Hence I am inclined to hold that the term child used in section 2 (b) clearly refers to any person below the age of 18 years, whether married or unmarried. 14. In this context, the question whether the children should be in the party array is a factual matter, if the children had not attained the age of majority as on the date of application. Since the court below did not go into that factual question in detail, I am not inclined to deal with that issue in this revision. 15. The evidence indicate that RW1 was aged 67 years. It is true that PW1 in her evidence admitted that she was an LIC agent and her license was not renewed after February. She also admitted that she was working as a collection agent in a jewellery and used to get an income between Rs.1500/- to Rs.2000/-. 15. The evidence indicate that RW1 was aged 67 years. It is true that PW1 in her evidence admitted that she was an LIC agent and her license was not renewed after February. She also admitted that she was working as a collection agent in a jewellery and used to get an income between Rs.1500/- to Rs.2000/-. The contention of the learned counsel for the revision petitioner is that the wife did not disclose her employment and the income does not appear to be sustainable, since she did not have any sufficient income worth disclosure. Definitely, an amount of Rs.1500/- to Rs.2000/- cannot meet even the primary needs of any person, much less a woman with two children, to be maintained. Technically, the contention of the revision petitioner that the wife ought to have been disclosed that she was employed, but did not get sufficient means appear to be correct. But I am not inclined to reject the contention of the wife on that ground alone. 16. It is true that the wife had not produced any document regarding her income. But evidence is available regarding the maximum income of Rs.2000/- from her collection agent business. As on the date of filing the application, the elder child was reported to be 20 years old, whereas the second child was aged 16 years old. Hence, definitely the elder child was not entitled for maintenance under section 20 of the Domestic Violence Act. On the other hand, the second child was shown as aged 16 years as on the date of application. Definitely, she is entitled for maintenance till she attained the aged of 18 years. Considering the age of the wife, her needs and her status during her cohabitation with the husband, I feel that a sum of Rs.3000/- ordered by the court below is not on the higher side. Further, the amount ordered by the court below payable to the second child @ Rs.1000/- is also not on the higher side, if not less. In the absence of any challenge, I am not inclined to interfere with that. It also seems that the court below confined the maintenance to the date of order alone rather than from the date of petition without any reason. Though, the learned counsel for the respondents assailed it, in the absence of any challenge to that also, I am not inclined to interfere with that. It also seems that the court below confined the maintenance to the date of order alone rather than from the date of petition without any reason. Though, the learned counsel for the respondents assailed it, in the absence of any challenge to that also, I am not inclined to interfere with that. Hence I am inclined to hold that the maintenance to the wife @ Rs.3000/- and Rs.1000/- to the second child is liable to be confirmed. This will be confined to the period till the second child attains the age of 18 years. The finding of the court below regarding maintenance to the first child is liable to be set aside. In the result, the revision is allowed in part. While confirming the order of maintenance payable @ Rs.3000/- to the first respondent and Rs.1000/- to the second child, it is clarified that the second child shall receive maintenance till the attainment of age of 18 years. The revision petitioner shall pay the entire arrears within a period of one month from the date of receipt of this order, failing which the first respondent will be entitled to get the entire amount received by due process of law. The order directing the revision petitioner to pay maintenance @ Rs.3000/- to the elder child is held to be not sustainable and is set asid.