The Court allowed an appeal against a Family Court order rejecting a claim for past maintenance on the grounds of Order II Rule 2 CPC. Distinguishing between distinct causes of action for gold recovery and maintenance, the Court fixed past maintenance quantum.
Appeal allowed; petitioners entitled to recover Rs.1,35,000 as past maintenance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE A.M.BABU
WEDNESDAY, THE 27TH DAY OF FEBRUARY 2019 / 8TH PHALGUNA, 1940
Mat.Appeal.No. 597 of 2014
AGAINST THE ORDER/JUDGMENT IN OP 112/2013 of FAMILY COURT, TIRUR DATED 22-05-2014
APPELLANTS/PETITIONERS:
1 P.K.SULAIKHA, AGED 34 YEARS, D/O.MUHAMMED, KARIYATTIL HOUSE, PALATHINGAL, PANTHARANGADI, TIRURANGADI TALUK, TIRURANGADI POLICE STATION LIMIT.
2 MUHAMMED SABITH (MINOR), AGED 9 YEARS, S/O.KAMMU,
3 FATHIMA, AGED 8 YEARS (MINOR) D/O.KOMMU, 2ND AND 3RD MINOR PETITIONERS ARE REPRESENTED BY GUARDIAN 1ST PETITIONER.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT/RESPONDENT:
KAMMU KODUVAPARAMBAN KOTHERI, AGED 41 YEARS, S/O.KUNHEEN, THOTTIPARAMBAN HOUSE, KUTTUR NORTH P.O., AR NAGAR (VIA), TIRURANGADI TALUK, TRIRURANGADI POLICE STATION LIMIT.
BY ADV. SRI.DEVAPRASANTH.P.J.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
SHAFFIQUE, J
This appeal is filed by the petitioners in O.P.No.112/2013 challenging an order passed by the Family Court, Tirur rejecting the claim for past maintenance. The past maintenance was claimed at the rate of Rs.10,000/- for the 1st appellant and Rs.5,000/- each for appellants 2 and 3. Past maintenance was claimed for 16 months from 1.1.2009 to 31.3.2010. The Family Court having found that in so far as the 1st petitioner had filed O.P.No.341/2010 and not claimed for past maintenance, a claim now made is barred under Order II Rule 2 of the Code of Civil Procedure.
“ 2. Suit to include the whole claim:- (1) Every suit
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shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”
concerned against which Mat.A.No.981/2010 has been filed, it was a case where the 1st petitioner sought for return of gold ornaments and money. She did not make any claim for part maintenance, whereas a separate MC was filed for future maintenance from 2010 onwards. As far as maintenance is concerned, the said claim itself is a separate cause of action. Past maintenance is claimed when the respondent fails to maintain the wife and children. The cause of action for recovery of gold ornaments and money given as parental share rests on the principle underlying in Section 6 of the Dowry Prohibition Act, 1961. That apart, the minors were not party in the said original petition. The Family Court therefore committed serious error in arriving at a finding that the claim is barred by Order II Rule 2 of CPC.
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as the quantum of maintenance is concerned, in M.C.No.349/2010 the Family Court had fixed the maintenance at the rate of Rs.5,000/- to the 1st petitioner and at the rate of Rs.2,000/- each to the 2nd and 3rd petitioner. Same quantum can be fixed as past maintenance for the appellants/petitioners.
Accordingly the appeal is allowed. The petitioners/appellants are entitled to recover an amount of Rs.1,35,000/- (Rs. One lakh thirty thousand only) from the respondent as past maintenance.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
A.M.BABU
True copy
JUDGE
P.A. To Judge.
kp
2 issues framed by the court
Whether Order II Rule 2 of CPC bars a claim for past maintenance when a separate suit was filed only for gold ornaments and money.
What quantum of past maintenance is recoverable for the period between January 2009 and March 2010.
2 provisions across 2 enactments
P.K.SULAIKHA
MUHAMMED SABITH
FATHIMA
KAMMU KODUVAPARAMBAN KOTHERI
A.M.SHAFFIQUE
A.M.BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
