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2024 DIGILAW 1567 (KER)

Kunjumon, S/o Hassankunju v. Hyrunissa, W/o Late Mujeeb K

2024-11-28

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

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JUDGMENT : Devan Ramachandran, J. Petitioner is the father of late Mujeeb K. It is stated that the latter unfortunately passed away by suspected suicide. 2. The first respondent is the wife of Mujeeb K., and the second respondent his young daughter of two years. They filed O.P.No.454/20 before the Family Court, Mavelikkara, seeking a decree against the petitioner to a certain sum of money, which is alleged to have been entrusted to him by the father of the first respondent at the time of her marriage with his son, as also for maintenance to the second respondent – child, till she attains majority. 3. The records reveal that the respondents also filed I.A.4/2021 seeking interim maintenance for the second respondent - child asserting that, as per the applicable Muslim Law, it is the duty of the grandfather to maintain his grandchild when his father is no more or is poor, and if he has enough means to look after the ward. The first respondent specifically averred in the said application that “she has no income or source to look after the well being of the small child” (sic); and that the petitioner herein has enormous wealth, being an expatriate Indian working in a country in the United Arab Emirates. 4. Pertinently and as fully admitted, the above said application was filed by the respondents herein as early as on 27.2.2021; and it is conceded expressly that the petitioner did not file any objection to the same. His learned counsel - Sri.Basil Chandy Vavachan, however, explained that, this was because, his client was under the impression that the said I.A. is not maintainable since no statement of assets and liabilities of the 1st respondent was annexed to it. He, however, admitted that, under the applicable law, the child can seek maintenance from his paternal grandfather, since his father is no more; but that this is solely on the condition that his mother has no means to do so, which she must establish. 5. The aforesaid application was allowed by the learned Family Court, directing the petitioner to pay an amount of Rs.5,000/- per month to the second respondent - child from the date of filing of the Original Petition; and assailing it, the petitioner is before us. 6. 5. The aforesaid application was allowed by the learned Family Court, directing the petitioner to pay an amount of Rs.5,000/- per month to the second respondent - child from the date of filing of the Original Petition; and assailing it, the petitioner is before us. 6. The impugned order shows that the I.A. in question was considered by the learned Family Court on 13.03.2023; on which day, counsel for both sides were present and heard. This is also fully conceded to by Sri.Basil Chandy Vavachan before us. Pertinently, the order does not even reflect that an objection was raised qua the maintainability of the I.A., and it is luculent that, even in the pleadings of this case no such contention has been impelled. Obviously, it can only be construed that the petitioner did not raise the aspect of maintainability of I.A.No.4/2021 before the learned Family Court at any point of time. 7. Nevertheless, Sri.Basil Chandy Vavachan – learned counsel for the petitioner, today argued that I.A.No.4/2021 is not maintainable because it violates the declarations of the Hon’ble Supreme Court in Rajnesh v. Neha [2021(2)SCC 324], contending that, by the guidelines postulated therein, every application for maintenance, or interim maintenance, has to be supported by an affidavit of the petitioner, disclosing his or her assets and liabilities. He predicated that, when no such, admittedly, accompanied I.A.No.4/2021, it can only be taken to be infirm and not maintainable; and therefore, that the learned Family Court was in error in having allowed it. 8. However, in response, Smt.V.Beena – learned counsel for the respondents, submitted that her clients did not ask for maintenance for the 1st among them, but only for the second - who is a child of mere two years in age; and that too, because the former has no means or income to maintain even herself, much less the latter. She argued that, when the husband of the 1st respondent (father of the 2nd respondent) committed suicide, both of them were left forlorn and are finding it very difficult to sustain, particularly because the child is too young. 9. She argued that, when the husband of the 1st respondent (father of the 2nd respondent) committed suicide, both of them were left forlorn and are finding it very difficult to sustain, particularly because the child is too young. 9. Smt.V.Beena then contended that, since it is conceded that, as per the applicable Muslim Law, there is a duty cast upon the paternal grandfather to maintain the young child, when his father is no more and when the 1st respondent is unable to do so on account of impecuniousness, this Original Petition is only an experimental exercise. She concluded, saying that the present contention of the petitioner, that the I.A. is not maintainable, has been urged for the first time, without ever being whisperingly raised before the learned Family Court at any point, including when it was heard earlier; and thus prayed that this Original Petition be dismissed. 10. We have no doubt that, going by the guidelines fixed by the Hon’ble Supreme Court in Rajnesh (supra), every application seeking maintenance, or interim maintenance, is, normally, required to be accompanied by an affidavit of disclosure of assets and liabilities of the petitioner. True, in this case, Ext.P2 application, namely I.A.No.4/2021, does not appear to be accompanied by any such disclosure; but there is a specific averment in it that the 1st respondent herein has “no income or source to look after the well being of the small child”. (sic) 11. It is crucial that the respondents did not seek maintenance for both of them, but only for the second among them, who is a two year old child – being the grandchild of the petitioner; and it is unequivocally admitted by Sri.Basil Chandy Vavachan that no objections were filed by his client against it at any time, even though it was pending before the learned Family Court for nearly two years. As we have already said above, his argument is that the learned Trial Court had a duty – even when his client did not raise any objection to the maintainability of the I.A. - to assess such issue on its own; and then to have found that the reliefs sought for therein are not capable of being granted, solely because it was not accompanied by a disclosure of assets and liabilities. 12. 12. It is with no requirement to expatiate that, the afore contention is too far fetched because, when an affidavit is on record by the respondents, stating that the first among them has no source or income to take care of the second among them (the child); and when the petitioner failed or refused to file objections against the same and did not impel any contention against its maintainability - even at the time when it was being heard by the learned Family Court - to now argue that it was the duty of the said Court to have, nevertheless, considered such on its own, can only be construed to be brinkmanship and no more. This is ineluctable since, when the averments in the affidavit in support of the I.A. remained unopposed – either through objections, or even through oral submissions - it can only be presumed that they are unreservedly admitted by the petitioner. 13. To paraphrase, it would have been a completely different scenario, had the petitioner herein filed objections to the I.A., raising the issue of maintainability on the ground that it was not accompanied by a declaration of assets and liabilities; but, in the case at hand, what is presented is that he had refused to file any such and had chosen not to even make an oral submission before the Court when the I.A. was decided; but now chooses to raise it as an issue for the first time before us, after the Family Court found in favour of the young child. 14. We can neither approve the attempt of the petitioner; nor can we find in favour with his arguments against the impugned order. 15. We are also persuaded to find favour with the impugned order because what has been awarded by it is a relatively small amount, which would be barely sufficient for the needs and necessities of the young child, who is now left without a father to take care of him. In the afore circumstances, and for the reasons above, we dismiss this Original Petition.