Abdul Nizar v. Sajeena and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 ``` ``` RPFC NO. 5 OF 2016 ``` ``` AGAINST THE ORDER DATED 12.12.2014 IN MC 158/2011 OF FAMILY COURT,KOLLAM ``` ## `REVISION PETITIONER/RESPONDENT:` ``` ABDUL NIZAR, AGED 39 YEARS, S/O.MUHAMMED KUNJU, NEDIYAVILA VEEDU, MYLAPUR CHERRI, THAZHUTHALA VILLAGE, UMAYANALLOOR PO, KOLLAM DISTRICT ``` ``` BY ADV SRI.V.A.AJIVAS ``` ``` RESPONDENTS/PETITIONERS : 1SAJEENA, AGED 30 YEARS, D/O.JAMEELA, VILAYIL PADINJATTATHIL, MUYLAPUR CHERRI, THAZHUTHALA, UMAYANALLOR PO, KOLLAM DISTRICT 691589 2MUHAMMED IQBAL, S/O.SAJEENA, MINOR, AGED 10 YEARS, REPRESENTED BY THE GUARDIAN MOTHER FIRST RESPONDENT VILAYIL PADINJATTATHIL, MYLAPUR CHERRI, THAZHUTHALA, UMAYANALLOR PO, KOLLAM DISTRICT 691589 3MUHAMMED BILAL, S/O.SAJEENA,MINOR, AGED 8 YEARS, REPRESENTED BY THE GUARDIAN MOTHER FIRST RESPONDENT VILAYIL PADINJATTATHIL, MYLAPUR CHERRI, THAZHUTHALA, UMAYANALLOR PO, KOLLAM DISTRICT 691589 ``` ``` BY ADV SRI.SAJU J PANICKER ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.5/2016 -:2:- Dated this the 8[th] day of November,2023 ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order in M.C.No.158/2011 of the Family Court, Kollam, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.3,000/- each to the respondents – his wife and two sons – from the date of petition (30.06.2011). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts:** 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), seeking monthly maintenance allowance from the R.P.(FC)No.5/2016 -:3:- revision petitioner. It was their case that the first respondent was married to the revision petitioner on 26.11.1998. The respondents 2 & 3 are the children born in their wedlock. From 02.12.2007, the revision petitioner has refused to maintain the respondents. The respondents have no source or income for their livelihood. The revision petitioner is doing business in textiles and is also running a hotel, and is earning Rs.45,000/- per month. The respondents require Rs.5,000/- each per month for their maintenance. Hence, the application. 3. The revision petitioner filed a written objection, refuting the allegations in the application. It was his case that he is not doing any business. At the time of marriage, he was employed in the Gulf and returned in December, 2007. The first respondent misappropriated his earnings and has deserted him without sufficient cause. He has instituted any R.P.(FC)No.5/2016 -:4:- O.P.No.398/2010 before the Family Court for recovery of money. The application is filed as a counterblast to the above proceeding. The first respondent has a monthly agricultural income of Rs.30,000/-. She is also getting rent from her buildings and interest from the Fixed Deposits. She is employed as a saleswoman in a textile shop and is earning Rs.15,000/- per month. The revision petitioner is employed only as a supplier in a hotel and is earning only Rs.100/- per day. The revision petitioner is not in a position to maintain the respondents. Hence, the application may be dismissed. 4. The first respondent was examined as PW1 and Exts P1 to P2(b) were marked on her side. The revision petitioner examined himself and a witness as CPWs 1 & 2 and marked Ext D1 in evidence. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application, by directing the R.P.(FC)No.5/2016 -:5:- revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.3,000/- each per month. 6. Confronted with the said order; the revision petition is filed. 7. Heard; Sri. Ajivass V.A., the learned counsel appearing for the revision petitioner and Sri. Saju J. Panicker, the learned counsel appearing for the respondents. 8. Is there any illegality, impropriety or irregularity in the impugned order? 9. The revision petitioner admits his marriage with the first respondent and the paternity of the respondents 2 & 3. 10. The respondents' case is that the revision petitioner has deserted them and has refused to maintain them since 02.12.2007, despite having sufficient means. The respondents do not have any R.P.(FC)No.5/2016 -:6:- income for their livelihood. The revision petitioner is doing business and is earning Rs.45,000/- per month. The respondents require Rs.5,000/- each per month for their maintenance. 11. The revision petitioner’s defence was that the first respondent misappropriated his properties and he has filed a petition to recover the same. The first respondent has agricultural income, rental income and getting interest from her Fixed Deposits and, further, she is working as a saleswoman in a textile shop and is earning Rs.15,000/- per month. The revision petitioner is only earning Rs.100/- per day. Therefore, he is not in a position to maintain the respondents. Moreover, the first respondent has deserted the revision petitioner without sufficient cause. 12. In the celebrated decision in **Rajnesh v. Neha and Anr.** [2020 (6) KHC 1], the Hon'ble Supreme Court has held that the Maintenance laws R.P.(FC)No.5/2016 -:7:- have been enacted as a measure of social justice to provide recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 13. In **Captain Ramesh Chander Kaushal v. Veena Kaushal & Ors.** [(1978) 4 SCC 70], the Hon'ble Supreme Court has declared that the provision of maintenance is a measure of social justice and specially enacted to protect women and children, who fall within the constitutional sweep of Article 15(3) and reinforced by Article 39. 14. In **Bhuwan Mohan Singh v. Meena & Ors.** [(2015) 6 SCC 353], the Hon'ble Supreme Court has observed that Section 125 of the Code was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, since it is the R.P.(FC)No.5/2016 -:8:- sacrosanct duty of the husband to provide financial support to the wife and minor children, husband was required to earn money even by physical labour, if he is able bodied and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 15. In the case on hand, the revision petitioner has alleged that the first respondent has sufficient income to maintain herself. However, he has failed to produce any material to substantiate his assertion. On the contrary, he contended that he is only working as a supplier in a hotel run by his relative and is earning Rs.100/- per day. 16. It is well-settled in a plethora of judgments that, an able bodied person is bound to maintain his wife and children and also Courts are permitted to do some guesswork to arrive at the quantum of maintenance. R.P.(FC)No.5/2016 -:9:- 17. The Family Court, by the impugned order, taking into account the fact that the respondents are unable to maintain themselves and the respondents 2 & 3 are school going children, has fixed the monthly maintenance allowance @ Rs.3,000/- each. I find the quantum of maintenance to be reasonable and justifiable. 18. On an overall consideration of the pleadings and materials on record and the law on the point, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court by exercising its revisional powers under Section 19(4) of the Family Courts Act, 1964. The revision petition is devoid of any merits and is resultantly, dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim order of this Court, he would be entitled to adjust the deposited amount, while paying the R.P.(FC)No.5/2016 -:10:- arrears of maintenance as per the impugned order. Sd/- ## **C.S.DIAS,JUDGE** DST/08.11.23 //True copy// P.A. To Judge