Destitute Women And Children Made To Loiter In Courts, Parliament Should Think Of A Comprehensive Maintenance Law: Kerala High Court
The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation."Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time...
The Kerala High Court has expressed concern over the arduous procedure to obtain a maintenance order and has suggested the Parliament to bring about apposite changes in the law to ameliorate the situation.
"Destitute women and children are made to loiter in the corridors of the Courts to receive their monthly maintenance, which adds to their woes...this Court is of the firm view that the time is ripe for the Parliament to ponder in bringing corresponding changes in Chapter IX of the Code [Order for Maintenance of Wives, Children and Parents] to make it consonance with the law declared in Rajnesh or even think of a comprehensive maintenance law," Justice CS Dias observed.
In Rajnesh v. Neha & Anr. (2021), the Supreme Court had issued detailed guidelines on the procedure to streamline grant of maintenance.The Court had also set out criteria for determining quantum of maintenance, the date from which maintenance was to be awarded, how to enforce orders of maintenance and the fixing of payment of interim maintenance.
High Court suggested one of the ways to expedite maintenance cases is to stop "ritualistically following" the procedure under Section 421 CrPC, especially after the respondent states on oath that he has no property.
The provision stipulates that when an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine via issue of warrant.
In this case, the Family Court had sentenced the petitioner-husband to 10 months’ imprisonment for default in payment of arrears of maintenance of 28 months. The respondents were the wife and children.
High Court said there was no illegality in the order of the Family Court, particularly when the petitioner pleaded that he was unable to pay arrears of maintenance. It observed that sentencing a person to jail is a mode of enforcement and the purpose is to send the defaulter to jail to compel him to make payment of maintenance without default.
“The exposition of the law in Rajnesh was to remove the stumbling blocks in the procedure and the inordinate delay being caused in the disposal of maintenance applications and the enforcement of the orders. It is trite, that procedural laws are handmaids of justice. Therefore, the dispensation of the procedure under Section 421 of the Code, in a case where the respondent disclosed that he has no movable or immovable property, is justifiable and sustainable in law. In the emerged scenario post Rajnesh, I do not find any meaningful purpose in the Courts ritualistically following the procedure under Section 421, especially after the respondent states on oath that he has no property, other than to prolong the miseries of the persons living in vagrancy.”
Accordingly, the Court dismissed the revision petition filed by the petitioner and confirmed the order of the Family Court imposing 10 months imprisonment, but also clarified that he shall be released from prison on payment of the entire arrears of maintenance amount.
Counsel for the petitioner: Advocate Legith T.Kottakkal
Counsel for the respondents: Advocate T B Ramani
Citation: 2023 LiveLaw (Ker) 680
Case title: Rijas M T v Hafseena M
Case number: RPFC NO. 462 OF 2023