2018 (4) KHC 409

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2018 (4) KHC 409

Kerala High Court
Sunil Thomas, J.
Viswanathan P. K. v. Geethakumari and Another

Parallel citation(s) : 2018 (4) KHC 409 : 2018 (4) KLT SN 22
CaseNo : Crl. R. P. No. 1419 of 2017
Date : 01/06/2018
Protection of Women from Domestic Violence Act, 2005 -- S. 2(b) -- Child --
Definition of -- Opening word "unless the context otherwise", means that
insofar as any of the definition clauses mentioned in S.2 is used or employed
in any other part of the Act, wherein the context demands any other meaning,
definition clauses as mentioned therein should receive the meaning as defined
in the Act
Held: The above argument does not appear to be attractive. The opening word
"unless the context otherwise", means that insofar as any of the definition clauses
mentioned in S.2 is used or employed in any other part of the Act, wherein the
context demands any other meaning, the definition clauses as mentioned therein
should receive the meaning as defined in the Act. It does not mean that the
definition clauses should obtain an interpretation, which suit the facts and
circumstances of the case, that too depending on the personal law of the parties, DV
Act being a secular Statute. It is the context in which the Statute has employed the
word, that should receive the contextual interpretation.
Important Para(s):11
Protection of Women from Domestic Violence Act, 2005 -- S. 2(b) -- Child --

Definition of -- Definition of the term 'child' as is available in the Domestic
Violence Act is so clear, and for the purpose of interpreting it, an external aid,
in the form of a definition and provision used in another Statute, though may
be applicable to the party considering their personal law, need not be brought
in -- Child as defined in the Domestic Violence Act specifically refers to any
person below the age of 18 years
Important Para(s):12, 13
Protection of Women from Domestic Violence Act, 2005 -- S. 20, S.12, S.2(b) --
Child aged 20 years is not entitled for maintenance under S.20 of the DV Act
Protection of Women from Domestic Violence Act, 2005 -- S.20, S.12, S.2(b) --
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Maintenance to the child can be ordered till the child attains 18 years -- Fact
that child attained 18 years at the time when the order was passed does not
disable the Court to order maintenance to the child till the time child attained
18 years
Referred: Cholamarakkar v. Pathummamma @ Pathumma, 2008 (3) KHC 973;

Ismayil v. Fathima, 2011 (3) KHC 825; Muhammed v. Kunhayisha, 2003 KHC 1076;
Referred to
Advocates:
P. K. Mohanan; For Revision Petitioner

M. K. Pushpalatha; T. B. Remani; For Respondents
ORDER
1. The revision petitioner challenges the order of the Judicial First Class Magistrate
Court - II, Palakkad in MC.No.173/2014, by which he was directed to pay
maintenance to his wife and children, in an application filed under S.12 of Protection
of Women from Domestic Violence Act, 2005 (hereinafter referred to as DV Act).
2. The first respondent herein who is admittedly the wife of the revision petitioner
filed the application contending that the revision petitioner harassed her mentally
and physically and refused to maintain her and two children. It was alleged that he
had committed acts of domestic violence. She claimed maintenance @ Rs.5000/-
for herself and for each of the child. The revision petitioner appeared and contended
that he was aged 63 years, that he was thrown out of the house and that he had no
sufficient income to maintain wife and children. It was also contended that the first
respondent herein was employed as an LIC agent and also as a sales officer in a
jewellery. The elder daughter used to take tuition and earned more than Rs.20,000/-
every month.
3. Both sides let in evidence to prove the rival claims. The court below, on an
evaluation of the available materials concluded that the first respondent was unable
to maintain herself and the children and directed the revision petitioner to pay
maintenance @ Rs.3000/- each to the wife and the first child and Rs.1000/- to the
second child. Aggrieved by the above order, the revision petitioner has preferred this
revision.
4. Heard both sides and examined the records.
5. Three specific contentions were raised by the learned counsel for the revision
petitioner. The first contention was that both the children have attained the age of
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majority and they did not fall within the definition of child as contemplated under the
Domestic Violence Act. It was further contended that the elder child attained the age
of majority even at the time of institution of the proceedings and the second child
attained majority during the subsistence of the application. Hence it was contended
that they were not entitled for maintenance. It was secondly contended that since
they had attained the age of majority, they ought to have been made as party to the
proceedings independently. On the other hand, the mother sought maintenance on
behalf of the children. The third contention set up by the learned counsel for the
petitioner was that evidence on record showed that the first respondent was earning
some income, which was not disclosed in the application for maintenance. It was
contended that since she had sufficient means, the revision petitioner was not
obliged to maintain the wife.
6. The learned counsel for the first respondent referred to the definition of the child
as available under S.2(b) of the Domestic Violence Act. The contention of the
learned counsel for the first respondent was that though the definition of child meant
any person below the age of eighteen years and included any adopted, step or
foster child, it was subject to the opening words in S.2 that "In this Act, unless the
context otherwise requires". It was contended that in the light of above, the term
child should obtain a liberal interpretation and explanation, in the context in which it
was used. The learned counsel, in this regard, invited my attention to S.3(b), S.20
and S.21(v) of the Hindu Maintenance and Adoptions Act. It was contended that the
term maintenance in S.3(b) of the said Act also included, in the case of an
unmarried daughter, reasonable expenses of incident to her marriage. It was
contended by the learned counsel that S.20 of the Hindu Maintenance and
Adoptions Act, referred to the maintenance of children and aged parents. Under
S.20(3), an obligation was cast on a person to maintain his unmarried daughter, who
was unable to maintain herself out of her own earnings or other property.
7. The learned counsel relied on the decision of this Court in Ismayil v. Fathima,
2011 (3) KHC 825 : 2011 (4) KLT 40 : ILR 2011 (3) Ker. 961 : 2011 (4) KLJ 43,
wherein the Division Bench reiterated the obligation of every father, irrespective of
his caste or religion, to maintain an unmarried daughter. It was contended that it
enforced on the father an obligation to give in marriage, a daughter who had
attained the age of 18 years. It was contended that S. 3 and S.20 of Hindu
Maintenance and Adoptions Act read along with the decision in Ismayil's case,
beyond any doubt established that the father had an obligation to give a child in
marriage on attainment of age of 18 years and in the case of delay correspondingly,
he had an obligation to maintain her, contended the learned counsel for the
respondents.
8. Elucidating the above arguments, it was contended by the learned counsel that in
the above circumstances, in the context of which S.2(c) of the Domestic Violence
Act was sought to be implemented it should obtain a wider them contextual
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interpretation and necessarily, the maintenance to the child should include, in the
case of unmarried child, maintenance till her marriage.
9. The aid sought by the learned counsel with reference to Ismayil's case seems to
be out of context. That was a case wherein referring to the various personal laws,
the Court concluded that irrespective of whether a Statute oblige or not, every father
has an obligation to maintain his unmarried daughter and to give the child in
marriage on attainment of age of 18. It was held that the unmarried daughter was
entitled for marriage expenses. That also does not mean that if the child remains
unmarried even after completion of age of 18, the father has an obligation to pay
monthly maintenance to her. The interpretation to the contra made by the learned
counsel for the respondents does not appear to be convincing in that context.
10. Evidently, the contention of the learned counsel for the revision petitioner is that
the term child as available in the definition of Domestic Violence Act with reference
to opening words of "In this Act, unless the context otherwise requires", means an
interpretation depending on the facts and circumstances of the case to which the
provisions of the Act was sought to be applied.
11. The above argument does not appear to be attractive. The opening word
"unless the context otherwise", means that insofar as any of the definition clauses
mentioned in S.2 is used or employed in any other part of the Act, wherein the
context demands any other meaning, the definition clauses as mentioned therein
should receive the meaning as defined in the Act. It does not mean that the
definition clauses should obtain an interpretation, which suit the facts and
circumstances of the case, that too depending on the personal law of the parties,
DV Act being a secular Statute. It is the context in which the Statute has employed
the word, that should receive the contextual interpretation.
12. The contention of the learned counsel for the respondents with reference to S.3
and S.20 and S.21(v) of the Hindu Maintenance and Adoptions Act has no
application to the facts of this case. Those are the provisions specifically applicable
to the Act alone. It cannot be brought in to supplement the provisions of Protection
of Women from Domestic Violence Act, 2005. The Domestic Violence Act is a
Statute by itself and the words and definitions used therein unless they are
ambiguous and calls for any aid from external source needs to be interpreted in the
context in which the words are employed in the Statute. In other words, the definition
of the term child as is available in the Domestic Violence Act is so clear, and for the
purpose of interpreting it, an external aid, in the form of a definition and provision
used in another Statute, though may be applicable to the party considering their
personal law, need not be brought in.
13. It is clear that the child as defined in the Domestic Violence Act specifically
refers to any person below the age of 18 years. These scope of the terms is clear,
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categoric and unambiguous. There is no scope for any other interpretation. This
seems to be clear from the decision reported in (Muhammed v. Kunhayisha, 2003
KHC 1076 : 2003 (3) KLT 106 : 2003 (2) KLJ 629), in which the learned Single
Judge of this Court while invoking S.125 Cr.P.C held that the language of S.125
Cr.P.C does not permit a construction that the status of a major daughter as an
unmarried person can by itself be construed as physical or mental abnormality or
injury sufficient to bring her care within the sweep of S.125(c) beyond for the Statute
for meant. It was categorically held that whatever be the religion of the parties, the
language of the Statute did not permit an unmarried major daughter to be brought in
the purview of S. 125 Cr.P.C, on the mere ground that she was unmarried. This
equally applies to a case under S.2(b) of the Domestic Violence Act also. This view
was later affirmed by a Division Bench of this Court in (Cholamarakkar and Another
v. Pathummamma @ Pathumma and Another, 2008 (3) KHC 973 : 2008 (3) KLT
887 : ILR 2008 (3) Ker. 768 : 2008 (3) KLJ 429). Hence I am inclined to hold that the
term child used in S.2(b) clearly refers to any person below the age of 18 years,
whether married or unmarried.
14. In this context, the question whether the children should be in the party array is
a factual matter, if the children had not attained the age of majority as on the date of
application. Since the court below did not go into that factual question in detail, I am
not inclined to deal with that issue in this revision.
15. The evidence indicate that RW1 was aged 67 years. It is true that PW1 in her
evidence admitted that she was an LIC agent and her license was not renewed after
February. She also admitted that she was working as a collection agent in a
jewellery and used to get an income between Rs.1500/- to Rs.2000/-. The
contention of the learned counsel for the revision petitioner is that the wife did not
disclose her employment and the income does not appear to be sustainable, since
she did not have any sufficient income worth disclosure. Definitely, an amount of
Rs.1500/- to Rs.2000/- cannot meet even the primary needs of any person, much
less a woman with two children, to be maintained. Technically, the contention of the
revision petitioner that the wife ought to have been disclosed that she was
employed, but did not get sufficient means appear to be correct. But I am not
inclined to reject the contention of the wife on that ground alone.
16. It is true that the wife had not produced any document regarding her income.
But evidence is available regarding the maximum income of Rs.2000/- from her
collection agent business. As on the date of filing the application, the elder child was
reported to be 20 years old, whereas the second child was aged 16 years old.
Hence, definitely the elder child was not entitled for maintenance under S.20 of the
Domestic Violence Act. On the other hand, the second child was shown as aged 16
years as on the date of application. Definitely, she is entitled for maintenance till she
attained the age of 18 years. Considering the age of the wife, her needs and her
status during her cohabitation with the husband, I feel that a sum of Rs.3000/-
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ordered by the Court below is not on the higher side. Further, the amount ordered by
the Court below payable to the second child @ Rs.1000/- is also not on the higher
side, if not less. In the absence of any challenge, I am not inclined to interfere with
that. It also seems that the Court below confined the maintenance to the date of
order alone rather than from the date of petition without any reason. Though, the
learned counsel for the respondents assailed it, in the absence of any challenge to
that also, I am not inclined to interfere with that. Hence I am inclined to hold that the
maintenance to the wife @ Rs.3000/- and Rs.1000/- to the second child is liable to
be confirmed. This will be confined to the period till the second child attains the age
of 18 years. The finding of the Court below regarding maintenance to the first child is
liable to be set aside.
In the result, the revision is allowed in part. While confirming the order of
maintenance payable @ Rs.3000/- to the first respondent and Rs.1000/- to the
second child, it is clarified that the second child shall receive maintenance till the
attainment of age of 18 years. The revision petitioner shall pay the entire arrears
within a period of one month from the date of receipt of this order, failing which the
first respondent will be entitled to get the entire amount received by due process of
law. The order directing the revision petitioner to pay maintenance @ Rs.3000/- to
the elder child is held to be not sustainable and is set aside.
Crl.R.P is allowed in part.
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2018 (4) KHC 409

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CaseSearch 2023 (Full Text) Copyright © Em Tee En Publications

2018 (4) KHC 409

Viswanathan P. K. v. Geethakumari and Another

Protection of Women from Domestic Violence Act, 2005 -- S. 2(b) -- Child --

Referred: Cholamarakkar v. Pathummamma @ Pathumma, 2008 (3) KHC 973;

P. K. Mohanan; For Revision Petitioner

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