Partly allowed

Xavier v. Presiding Officer

Kerala HC23 Nov 2015WP(C)/19569/2012

Case brief

AI extract

What is this about?

The court held that under Section 12 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, a parent cannot claim maintenance under both that Act and Chapter IX of the Cr.P.C. simultaneously. Consequently, an order directing additional maintenance alongside an existing Family Court award was quashed.

What did the court decide?

The direction to pay Rs.500 per month in addition to the amount granted by the Family Court was quashed.

Xavier Vs Presiding Officer — Maintenance and Alimony | Kerala HC (2015)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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MONDAY, THE 23RD DAY OF NOVEMBER 2015/2ND AGRAHAYANA, 1937

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WP(C).No. 19569 of 2012 (U)

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PETITIONER(S):

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1. XAVIER, AGED 53 YEARS, S/O. VARKEY, AMBATTU HOUSE, PULICKATHOTTY P.O., MANNIYAM BHAGAM, KANJIKUZHY VILLAGE, THODUPUZHA TALUK.

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2. ROY, S/O. VARKEY, RESIDING -DO-

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BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT

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RESPONDENT(S):

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1. PRESIDING OFFICER, MAINTENANCE TRIBUNAL (R.D.O.), IDUKKI.

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2. VARKEY S/O. SOURIAR, AMBATTU HOUSE, PULICKATHOTTY KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, PULICKATHOTTY P.O.

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R2 BY ADV. SRI.GEORGEKUTTY MATHEW

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R1 BY GOVERNMENT PLEADER SRI.T.J.MICHAEL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 19569 of 2012 (U)

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE RESPONDENT DATED	PETITION SUBMITTED BY THE 2ND 05-01-2011.
EXHIBIT P2: TRUE COPY OF THE PETITIONERS DATED	OBJECTION FILED BY THE 23-02-2011.
EXHIBIT P3: TRUE COPY OF THE	ORDER PASSED BY THE 1ST
RESPONDENT DATED	05-08-2011.
EXHIBIT P4: TRUE COPY OF THE	RECEIPTS DATED 17-01-2012.

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RESPONDENTS' EXHIBITS : NIL

OKB

True copy

P.A. to Judge

K.HARILAL, J.

W.P.(C) No.19569 of 2012

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Dated this the 23^rd day of November, 2015.

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JUDGMENT

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The petitioners herein are the counter

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petitioners 1 and 2 in a proceedings initiated before the 1^st respondent by the 2^nd respondent under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, (for short, 'the Act') claiming maintenance of the petitioners. The petitioners filed a joint objection mainly contending that the petition is not maintainable on the reason that the 2^nd respondent has already filed a petition seeking maintenance before the Family Court under Chapter IX of the Cr.P.C. and the Family Court passed an award directing the petitioners to pay maintenance allowance to the 2^nd respondent. According to Section

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WP(C).19569/12 :2:

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12 of the Act, the 2^nd respondent has no right to avail reliefs both under the Act and Chapter IX of the Cr.P.C. The 1^st respondent went wrong and passed Ext.P3 order directing the petitioners to pay an amount of Rs.500/per month to the 2^nd respondent in addition to the amount which was granted by the Family Court under Chapter IX of the Cr.P.C. Hence the petitioners prayed for calling for the records leading to Ext.P3 and to quash the same.

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Heard the learned counsel for the petitioners and the learned counsel for the respondents. Both the counsel advanced arguments in support of the averments and contentions raised in this memorandum of writ petition and the counter affidavit respectively.

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As rightly submitted by the learned counsel for the petitioners, going by Section 12 of the Act, it is seen that there is a clear bar that notwithstanding anything contained in Chapter IX of the Cr.P.C., where a senior citizen or a parent is entitled for maintenance

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WP(C).19569/12 :3:

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under Chapter IX of the Cr.P.C., 1973, and also entitled for maintenance under this Act may, without prejudice to the provisions of Chapter IX of the said Code claim such maintenance under either of those Acts but not under both. In short, parents are not entitled to get maintenance under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, in addition to the amount granted by the competent court under Chapter IX of the Cr.P.C. and conversely also.

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In the instant case, the 2^nd respondent himself admitted that he has already availed of the benefit under Chapter IX of the Cr.P.C., 1973. But, his grievance is that huge amount is pending due under the award passed by the Family Court. If any amount is in arrear under Chapter IX of the Cr.P.C., it is for the 2^nd respondent to seek appropriate remedies available under law to realise the arrear. In the above view of the matter, I find that the direction to pay Rs.500/per month in addition to the amount granted by the Family Court under Chapter IX of the Cr.P.C. will stand

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WP(C).19569/12 :4:

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quashed. It is made clear that other directions in

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Ext.P3 will stand as such without any interference.

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This writ petition is allowed in part.

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K. HARILAL, JUDGE

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okb.

Xavier v. Presiding Officer

Case brief

What is this about?

What did the court decide?

Xavier v. Presiding Officer

Case brief

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What did the court decide?

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