CHELLAMMA Vs. KUNJU PILLAI
HIGH COURT OF KERALA
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(1.) The first petitioner married the respondent and the second petitioner is the son born out of the wedlock. The petitioners were awarded maintenance in M. C. 5 of 1960 by the Sub Divisional Magistrate, Chengannur, the second petitioner being allowed at the rate of Rs. 5/- per mensem. The marriage between the first petitioner and the respondent was dissolved with effect from 25-3-1965. Thereafter the respondent filed O. P. 6 of 1966 before the District Court, Mavelikara for the custody of the second petitioner. The matter was compromised and the first petitioner agreed that the respondent be the guardian of the second petitioner and that the custody of the second petitioner be with the respondent on the assumption that such an arrangement would be to the benefit of the minor. The present revision petition arises out of a motion by the petitioners before the Sub Divisional Magistrate, Chengannur under S.489 Cr. P. C., for enhanced maintenance to the second petitioner. The case of the petitioners is that though after the compromise in O. P. 6 of 1966, the second petitioner was taken to the respondent, he was sent back after 2 days. For about a year, the respondent used to give him the noon meals. Thereafter, the respondent asked his son not to go over to his house. He did not take any interest in the maintenance of the child. During the four years preceding the petition, the second petitioner was living with the first petitioner. On the date of the petition, he was studying in the 8th standard. The petitioners claimed maintenance at Rs. 75/- per mensem. The respondent in his counter challenged the right of the first petitioner to act as the guardian of the second petitioner. He also denied that the second petitioner has been residing with the first petitioner and claimed that he has been maintaining the second petitioner. The second petitioner was being allowed by him to sleep with first petitioner, his mother during night. The respondent disowned his liability to pay anything by way of maintenance. The learned Sub Divisional Magistrate dismissed the claim for maintenance on the ground that the parties were bound by the compromise in O. P. 6 of 1966. The court did not enter a formal finding on the question as to whether there was neglect on the part of the respondent to maintain the second petitioner. According to the court, before claiming enhanced maintenance, the first petitioner should move the Additional District Court, Mavelikara to have the respondent removed from guardianship and to get custody of the second petitioner.
(2.) The point for decision is whether the learned Sub Divisional Magistrate is right in holding that the petition for enhanced maintenance is not maintainable, in view of the compromise in O. P. 6 of 1966.
(3.) It is well recognised that the object of S.488 Cr. P. C., is to prevent vagrancy on the part of women and children and to provide an efficacious method of enforcing payment of maintenance to them by persons who are bound to look after them. It is a summary remedy available to uncared for wives and children. An order passed under S.488 Cr. P. C., will not stand in the way of the Civil court in deciding questions relating to guardianship, custody or maintenance.;
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