Kerala High Court
Santha vs Mat.Appeal.No.177 Of 2 on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
Mat.Appeal.No.177 OF 2011
AGAINST THE ORDER/JUDGMENT IN OP 1432/2005 DATED 22-06-
2010 OF FAMILY COURT,THRISSUR
APPELLANTS:
1 SANTHA
MENTALLY RETARDED SPINSTER, D/O.KUNJAN NAIR,
AMBATTU HOUSE, MELEDATH LANE, CHEMBUKKAVU,
THRISSUR DISTRICT, REP. BY MOTHER AMMUKKUTTY
AMMA, W/O.KUNJAN NAIR,,
-DO-.------------------ADDL 2ND RESPONDENT
TRANSPOSED AS ADDL II
APPELLANT---------------------- THE NAME OF
SMT. AMMUKUTTY AMMA, REPRESENTING THE
APPELLANT IN THE APPEAL IS DELETED AND SMT.
NIRMALA HARIDAS, W/O HARIDAS AGED 58 YEARS,
AMBATT HOUSE, MELADATH LANE, CHEMBUKKAV,
THRISSURE IS APPOINTED TO REPRESENT THE SOLE
APPELLANT IN THE APPEAL AS PER ORDER DATED 02-
08-2019 IN IA NO. 1/2019 IN MAT.APPEAL
177/2011.
2 ADDL A2- AMMUKUTTY AMMA
AGED 96 YEARS, RESIDING AT AMBATTU HOUSE,
MELEDATH LANE, CHEMBUKKAV, THRISSUR, PIN-
680020.
IS TRANSPOSED AS ADDL 2ND APPELLANT AS PER
ORDER DATED 30.06.2016 IN IA NO.792/2016.
BY ADV. SRI.S.VIDYASAGAR
RESPONDENTS:
Mat.Appeal.No.177 OF 2011
..2..
1 RAMACHANDRAN, S/O.KUNJAN NAIR, AMBATTU HOUSE,
MELEDATH LANE, CHEMBUKKAVU,, THRISSUR
DISTRICT, PIN. 680 020..
2 ADDL R2 - AMMUKUTTY AMMA
AGED 96 YEARS, RESIDING AT AMBATTU HOUSE,
MELEDATH LANE, CHEMBUKKAV, THRISSUR, PIN-
680020.
IMPEADED AS ADDL. 2ND RESPONDENT AS PER ORDER
DATED 03.03.2016 IN IA NO. 793/2016
R1 BY ADV. SRI.P.K.SAJEEV
R1 BY ADV. SRI.M.B.PRAJITH
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mat.Appeal.No.177 OF 2011
..3..
JUDGMENT
Dated this the 19th day of January 2021
A.Muhamed Mustaque, J
Smt.Santha, the appellant herein is the sister of the
respondent. She is now aged 72 years. She is a mentally
challenged woman. The appellant along with her mother Smt.
Ammukutty Amma filed O.P. No. 1432/2005 before the Family
Court, Thrissur, claiming maintenance. The claim of Smt.
Santha was disallowed holding that there is no substantive right
under law to fasten the liability on a brother to maintain her
sister. Challenging this, the appeal was preferred.
2. We heard the learned counsel for the appellant and
the respondent.
3. Smt. Santha was represented herein originally by her
mother Smt. Ammukutty Amma. She is no more. Presently,
Mat.Appeal.No.177 OF 2011
..4..
Smt. Santha is represented by her own sister. The respondent
appears to be the only brother of Smt. Santha.
4. The Family Court considered the claim of the
appellant and held that there is no substantive right under law to
claim maintenance from brother. The claim made by the
appellant based on family partition deed executed in the year
1986 was not considered for the reason that contractual
obligations will have to be worked out before proper formum
and not before the Family Court. The short issue that arises for
consideration in this appeal is whether in the absence of
substantive right under law, the claim for maintenance referable
to contractual obligation would lie before the Family Court or
not. In that context, it is appropriate to refer to the Family
Courts Act, 1984. Section 7 of the Act refers to the jurisdiction
of the Family Court. It states that Family Court will have
jurisdiction in respect of suits and proceedings as referred to in
Mat.Appeal.No.177 OF 2011
..5..
the explanation. Explanation (f) to Section 7 states that a suit or
proceeding for maintenance is maintainable. It does not state
that such a suit or proceeding would lie only in the
circumstances a substantive right is conferred on party under
law to claim maintenance. When right is conferred for
maintenance under contractual terms, such a suit will be
maintainable before the Family Court, provided, such obligation
is related to the family affairs. The object and intention of the
legislature cannot be construed to mean that only suit or
proceeding to determine the rights flowing from the statutory
provisions alone would lie before the Family Court. Any
dispute related to payment of maintenance based on family
arrangement also would lie before the Family Court. An
unmarried sister cannot be termed as if she is outside the family
of the brother. The term 'Family' has to be understood in the
context in which maintenance is claimed. It is also to be noted
Mat.Appeal.No.177 OF 2011
..6..
that the obligation arisen on the respondent brother is under a
family partition deed. In such circumstances, we cannot agree
with the finding of the family court that the obligation to pay
maintenance under contract cannot be enforced through the
family court. Thus, we hold that suit or proceeding claiming
maintenance based on contract by a family member is also
maintainable before the family court. We accordingly, set aside
the finding of the family court that the appellant is not entitled
for maintenance based on contract.
5. The next question is as to what is the quantum of
maintenance. The original petition was filed before the Family
Court in the year 2005. The respondent was drawing a salary of
merely, Rs.5,500/- as evident from Ext.B2 Salary Certificate.
Perhaps, the salary might have increased in due course of time.
If we order maintenance from the date of institution of the
original petition, it will be a huge burden on the respondent.
Mat.Appeal.No.177 OF 2011
..7..
We are of the view that the respondent can be directed to pay
Rs.500/- from the date of filing of appeal before this Court, i.e.,
25.02.2011 till 19.01.2021, date of this judgment and thereafter,
the respondent is directed to pay Rs.1,000/- to the appellant.
Accordingly, we set aside the impugned order declining
maintenance to the appellant. The arrears of maintenance as
ordered shall be paid within a period of three months.
The appeal is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
PR
