Abdul Razaq v. Sunitha P.C. and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 73 OF 2017 ``` ``` AGAINST THE ORDER DATED 08.12.2016 IN MC NO.80/2016 OF FAMILY COURT, VADAKARA ``` ## `REVISION PETITIONER/RESPONDENT:` ``` ABDUL RAZAQ, AGED 39 YEARS, S/O.ABOOBACKER, MUKKADE KATTIL, VALAPPIL HOUSE, AYILAKKAD P.O., EDAPPAL, MALAPPURAM DISTRICT. ``` ``` BY ADVS.SRI.ABDUL JALEEL.A SMT.M.A.SULFIA ``` ## `RESPONDENTS/PETITIONERS:` ``` 1SUNITHA P.C. AGED 36 YEARS D/O.KANARAN, PARACHALIL HOUSE, KOOTHALI P.O., PERAMBRA VIA. 673525 2SRUTHI, AGED 7 YEARS (MINOR), D/O.ABDUL RAZAQ, PARACHALIL HOUSE, KOOTHALI P.O., PERAMBRA VIA- 673525 3SREYA, AGED 7 YEARS (MINOR), D/O.ABDUL RAZAQ, PARACHALIL HOUSE, KOOTHALI P.O., PERAMBRA VIA.673525 MINORS REPRESENTED BY THEIR MOTHER 1ST RESPONDENT SUNITHA) ``` ``` BY ADV P.V. ANOOP ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING ``` R.P.(FC)No.73/2017 -:2:- Dated this the 7[th] day of December, 2023 ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order in M.C.No.80/2016 of the Family Court, Vatakara, ordering the revision petitioner to pay the respondents – his wife and children – monthly maintenance allowance @ Rs.2,500/- each from the date of application (22.04.2016). 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), against the revision petitioner seeking monthly maintenance allowance. It was their case that the first respondent and the revision petitioner were living R.P.(FC)No.73/2017 -:3:- together. Subsequently, they got married as per the Muslim religious rites. The respondents 2 & 3 are born in their wedlock. Subsequently, the revision petitioner treated the first respondent with matrimonial cruelty. He took her to Chennai and sold her kidneys’ and spent the money for his extravagant living. The respondents are unable to maintain themselves. They have converted to Hinduism. The revision petitioner is a driver by profession and is also doing real estate business. He earns a monthly income of Rs.30,000/- from his profession, Rs.50,000/- from his business and Rs.10,000/- from his landed properties. The respondents require a monthly maintenance of Rs.20,000/-. The revision petitioner is in a position to maintain them at the said rate. Hence, the application. 3. The revision petitioner filed a written objection denying the assertions in the application. It was his main defence that the first respondent left his marital consortium without any sufficient cause and R.P.(FC)No.73/2017 -:4:- has converted to Hinduism against his wishes. The revision petitioner is not liable to maintain the first respondent. Moreover, he is only an auto-driver and does not have means to maintain the respondents. The amount claimed as maintenance is exorbitant and unreasonable. Hence, the application may be dismissed. 4. The first respondent was examined as PW1 and the revision petitioner was examined as RW1, and Exts B1 & B2 were confronted and marked through him in evidence. 5. The Family Court, after appreciating the pleadings and materials placed on record, by the impugned order, partly allowed the application as observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Smt. Sulfia M.A., the learned counsel appearing for the revision petitioner and Sri. P.V. R.P.(FC)No.73/2017 -:5:- Anoop, the learned counsel appearing for the respondents. 8. The learned counsel appearing for the revision petitioner vehemently argued that, since the first respondent is living separately from the revision petitioner without sufficient cause, the revision petitioner is not liable to maintain the first respondent, in view of Section 125(4) of the Code. Likewise, the first respondent has converted to Hinduism against the wishes of the revision petitioner, which establishes that she has no intention to continue the marriage. Hence, the impugned order passed by the Family Court is erroneous and is liable to be set aside. 9. The learned counsel appearing for the respondents defended the impugned order and submitted that there is no material on record to prove that the first respondent is living separately from the revision petitioner without sufficient cause. The revision petition is only liable to be dismissed. R.P.(FC)No.73/2017 -:6:- 10. Is there any illegality, impropriety or irregularity in the impugned order? 11. The revision petitioner admits his marriage with the first respondent and the paternity of the respondents 2 & 3. 12. The respondents’ case is that, despite the revision petitioner is working as a driver and doing business, and earning a monthly income of Rs.90,000/-, he has refused to maintain the respondents. 13. The revision petitioner’s defence is that the first respondent is living separately from him without sufficient cause. She has without his consent converted to Hinduism. Therefore, he is not liable to maintain the respondents. 14. 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 have been enacted as a measure of social justice to provide recourse to dependant wives and children for R.P.(FC)No.73/2017 -:7:- their financial support, so as to prevent them from falling into destitution and vagrancy. 15. 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. 16. 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 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 R.P.(FC)No.73/2017 -:8:- able bodied and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 17. The revision petitioner’s pivotal defence is that the first respondent is living separately from him without sufficient cause. Admittedly, the revision petitioner has not taken any steps to resume cohabitation with the first respondent. He has not filed a petition for a decree for restitution of conjugal rights. On the contrary, the respondents have confronted and proved that a crime was registered against the revision petitioner and Ext B2 final report has been filed by the Kuttipuram Police in Crime No.703/2013, on the allegation of harassment and cruelty committed by the revision petitioner. 18. The revision petitioner’s case is that, he is only an auto driver by profession. The revision petitioner was aged 39 years at the time of filing the application. He has not produced any material to R.P.(FC)No.73/2017 -:9:- prove his income or that he is having any mental or physical ailment. Therefore, it is assumed that he is an able bodied person. An able bodied person in the year 2016 by any stretch of imagination would have earned Rs.1,000/- per day for 25 days in a month. Thus, the revision petitioner’s notional income can easily be fixed at Rs.25,000/- per month. A person having an income of Rs.25,000/- can very well pay Rs.2,500/- each to his wife and children i.e., a total amount of Rs.7,500/- per month. 19. After bestowing my anxious consideration to 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 under Section 19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merits and is only liable to be dismissed. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has R.P.(FC)No.73/2017 -:10:- deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order. Sd/- ## **C.S.DIAS,JUDGE** DST/07.12.23 //True copy// P.A. To Judge