Skip to content


K.P. Nair Vs. Pilakkavil Maveli Kunhi Parvathi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1967CriLJ1231
AppellantK.P. Nair
RespondentPilakkavil Maveli Kunhi Parvathi Amma and ors.
Cases ReferredSaraswati v. Madhavan
Excerpt:
- - the section clearly contemplates only cases where there is change in the financial circumstances of the person affected......respondent only as the latter passed the age of 19 and is not 'unable to maintain himself.' the district magistrate, tellicherry, dismissed the motion saying:section 489, criminal p. c. only contemplates an order altering the allowance already granted. it does not contemplate an order cancelling the maintenance already granted ...section 489 (1) does not say that an order for maintenance can be altered or cancelled on the ground that the person who receives it has attained majority. when the order for maintenance was passed, the second respondent was a minor. the allegation that he la now past 18 years is not disputed. the change of circumstances referred to in section 489 is a change in the pecuniary or other circumstances of the party paying or receiving the allowance which would.....
Judgment:
ORDER

M. Madhavan Nair, J.

1. The petitioner herein has been ordered in a prior proceeding to pay maintenance to his wife the 1st respondent, his minor son the-and respondent, and his daughter the 3rd respondent. On march 24,1965, he moved under Section 489, Criminal P. C. for cancellation of that order as concerns the 2nd respondent only as the latter passed the age of 19 and is not 'unable to maintain himself.' The District Magistrate, Tellicherry, dismissed the motion saying:

Section 489, Criminal P. C. only contemplates an order altering the allowance already granted. It does not contemplate an order cancelling the maintenance already granted ...Section 489 (1) does not say that an order for maintenance can be altered or cancelled on the ground that the person who receives it has attained majority. When the order for maintenance was passed, the second respondent was a minor. The allegation that he la now past 18 years is not disputed. The change of circumstances referred to in Section 489 is a change in the pecuniary or other circumstances of the party paying or receiving the allowance which would justify an increase or decrease of the amount of the monthly payment originally fixed, and not a change in the status of the parties which would entail a stoppage of the allowance. The section clearly contemplates only cases where there is change in the financial circumstances of the person affected....The alteration in the allowance contemplated by the section only refers to a power to alter the amount, and not to a total discontinuance thereof.... The petitioner can, therefore, succeed only if he proves that the second respondent is now in a position to maintain himself....Except the petitioner's self-serving statement there is nothing else to indicate that the second respondent is in a position to maintain himself. This petition is, therefore, dismissed.

2. I am afraid that the observations of the District Magistrate are opposed to the rulings of this Court, which he ought to have followed implicitly. In Mahomed Ismail v. Sarammal : AIR1960Ker262 Anna Chandy J. has ruled that the words 'change in the circumstances' and 'alteration in the allowance' are wide enough to take in, without doing violence to the language, 'divorce' and 'cancellation of allowance' and in Saraswati v. Madhavan : AIR1961Ker297 Govinda Menon, J. has ruled; 'child under Section 488, Criminal P. C., refers only to a minor. If it could be taken to mean only progeny there is the danger envisaged by his Lordship Panohapakesa Ayyar J. in AIR 1950 Mad 394, where a man of 77, unable, owing to senility to maintain himself claiming maintenance from his father aged 97. That could not have been the intention of the legislature in using the word 'child'.' To the same effect is the ruling of the Madras High Court in (1964) 2 Mad L J 70. An order for maintenance under Section 488, Criminal P. C. is only to pay maintenance to a wife or child. If the person benefited by the order ceases to be a wife (by divorce) or a child (on attaining majority) the order spends itself out and has to be can- celled by the Court. The rulings cited above hold that a child ceases to be such on attaining majority and that such a change in status is a change in circumstance relevant for an alteration by cancellation of an order for maintenance comprehended by Section 489, Criminal P. C. Every major is bound to work and earn his livelihood, and not to sit idle claiming to be maintained by his parent.

The order of the District Magistrate is patently incorrect and is hereby reversed. The order for maintenance passed in M. C. No. 63 of 1961 on the file of the District Magistrate, Tellicherry, as modified by this Court in Cri. R. P. No. 284 of 1962, is hereby cancelled as regards the and respondent with effect from March 24, 1965.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //