Sardar Sikhbir Singh vs Kakamani Singh

N.K. Gupta, J.—Heard on admission. The applicant has challenged the order dated 7.11.2012 passed by the learned Second Additional Principal Judge, Family Court, Jabalpur, whereby the application u/s 128 of the Cr.P.C. filed by the respondent was accepted and the previous maintenance was directed to be paid.

The facts of the case, in short, are that, vide order dated 24.9.2001 passed in M.J.C. No. 889/2001, a maintenance was granted to the respondent Kakamani Singh. Thereafter, a compromise took place between the parties on 15.12.2003, which was not filed before the trial Court but, in the light of that compromise, mother of the respondent Kakamani had withdrawn his application of execution. When an application u/s 128 of the Cr.P.C. was filed by the respondent through his mother then, the trial Court started recovery of the remaining maintenance amount.

After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that mother of the respondent entered into a contract out of the Court and therefore, that contract has no effect in recovery of the maintenance amount due in favour of the minor child i.e. the respondent. The learned Second Additional Principal Judge, Family Court, has rightly found that recovery of the maintenance for last 12 months can be done. Amount of maintenance for last one year was within the limitation and that can be recovered.

The learned counsel for the applicant has also raised the objection that the applicant is suffering from serious illness and he is unable to pay any maintenance. However, it is a subsequent event after passing of the original order of maintenance on 24.9.2001 and therefore, it was for the applicant to move an application for modification in the order of maintenance on the pretext that now he has no source of income and he has to spent his entire income on his own treatment. Without filing the application for reduction in maintenance amount, such objection cannot be raised in case of recovery of maintenance. When order dated 24.9.2001 is intact, the respondent can get the recovery in compliance to that order. Under such circumstances, the learned second Additional Principal Judge has committed no wrong in rejecting the objection raised by the applicant.

So far as the application of the applicant relating to section 25 of Guardian and Wards Act is concerned, for grant of maintenance to minor child, it is not necessary that child should be given in the custody of his father. As and when the application filed by the applicant is accepted and he gets the custody of the son then, he may move an application to set aside the maintenance order in favour of the respondent but, at present, he has to pay the maintenance which is due at the time of filing of the application.

On the basis of the aforesaid discussion, there is no reason by which the revision filed by the applicant can be accepted. Consequently, it is hereby dismissed at motion stage. A copy of the order be sent to the trial Court for information and compliance.