Abdul Shukur v. Mariamma

1 R.P (FC) No.442 of 2023 # **`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. 442 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT MC 19/2018 OF FAMILY COURT, ``` ## **`PALAKKAD`** ## **`REVISION PETITIONER/S:`** ``` ABDUL SHUKUR AGED 48 YEARS S/O LATE SULAIMAN, SJ MANZIL, POONTHONI HOUSE, VADAVANNUR P.O., PALAKKAD DISTRICT, PIN - 678504 BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. VIJINA K. ARUL MURALIDHARAN ``` ## **`RESPONDENT/S:`** ``` MARIAMMA AGED 43 YEARS D/O LATE KADHERSHA, TK THARA HOUSE, KODUVAYUR, PALAKKAD, PIN - 678512 BY ADVS. Jacob Sebastian WINSTON K.V(K/147/2010) ANU JACOB(K/1072/2013) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.442 of 2023 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.442 of 2023 ----------------------------Dated this the 7[th] day of December, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.19/2018 of the Family Court, Palakkad, ordering the revision petitioner to pay the respondent – his wife - monthly maintenance allowance @ Rs.3,000/- per month from January, 2018 to January, 2022 and, thereafter, monthly maintenance allowance @ Rs.4,500/- from February, 2022 to June, 2022 and, then, @ Rs.5,000/- per month from July 2023 until further orders. The revision petitioner was the 3 R.P (FC) No.442 of 2023 respondent and the respondent was the petitioner before the Family Court. ## **Brief facts** 2. The respondent had filed the application under Sec.125 of the Code of Criminal Procedure (in short, “Code”), against the revision petitioner, for monthly maintenance allowance @ Rs.15,000/- per month. It was her case that she was married to the revision petitioner on 17.6.2001. They have two children born in the wedlock. The revision petitioner had treated the respondent with matrimonial cruelty and she was constrained to leave the matrimonial home. The revision petitioner is running a cycle workshop and doing real estate and auto mobile 4 R.P (FC) No.442 of 2023 business. He is earning a monthly income of Rs.50,000/-. The respondent does not have any means to maintain herself. Therefore, she is entitled to monthly maintenance @ Rs.15,000/-. Hence, the application. 3. The revision petitioner resisted the application by filing his written objection denying the allegations in the application. He contended that he is ready to resume cohabitation with the respondent. He is only earning a monthly income of Rs.10,000/- . He is looking after two children born in the wedlock and also his aged parents. He is undergoing medical treatment and does not have any means to maintain 5 R.P (FC) No.442 of 2023 the respondent. Hence, the application may be dismissed. 4. The respondent had filed OP Nos.57 and 58 of 2018 against the revision petitioner for a decree for return of gold ornaments and custody of the children, respectively. 5. The Family Court consolidated and jointly tried all the three proceedings. 6. In the trial, the respondent was examined as PW1 and Exts A1 to A5 were marked through her in evidence. The revision petitioner was examined as RW1 and Exts B1 to B6(b) were marked on his side. 7. The Family Court, after appreciating the pleadings and materials placed on record, by the 6 R.P (FC) No.442 of 2023 impugned order, partly allowed the application by directing the revision petitioner to pay the respondent monthly maintenance allowance as already observed above. 8. It is assailing the said order; the revision petition is filed. 9. Heard; Sri.Rajesh Sivaramankutty, the learned counsel appearing for the revision petitioner and Sri.Jacob Sebastian, the learned counsel appearing for the respondent. 10. Is there or any illegality, impropriety irregularity in the impugned order? 7 R.P (FC) No.442 of 2023 11. The revision petitioner admits his marriage with the respondent. He has also not disputed that two children were born in the wedlock. 12. The respondent’s case was that due to the matrimonial cruelty that was meted out on her by the revision petitioner, she was constrained to leave the matrimonial home. She does not have any means to maintain herself. The revision petitioner is running a cycle work shop and doing real estate and auto mobile business. He is earning a monthly income of Rs.50,000/-. Therefore, the respondent is entitled to be maintained @ Rs.15,000/- per month. 13. The revision petitioner’s principal defence was that the respondent was living separately from 8 R.P (FC) No.442 of 2023 him without any sufficient cause. He is suffering from various ailments and is undergoing treatment. Moreover, he is looking after the two children born in their wedlock and also his aged parents. He is only earning Rs.10,000/- per month. 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 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 9 R.P (FC) No.442 of 2023 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 and the 10 R.P (FC) No.442 of 2023 husband is 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. 17. Although the revision petitioner contended that the respondent was living separately from him without any sufficient cause, neither has he taken any steps to resume cohabitation with the respondent nor filed a petition for a decree for restitution of conjugal rights. Similarly, though the revision petitioner contended that he is suffering from ailments, there is nothing on record to substantiate his ailment. Hence, he is assumed to be an able bodied person. The revision petitioner was aged 44 years at the time of 11 R.P (FC) No.442 of 2023 filing the application. An able bodied person in the year 2018, by any stretch of imagination, would have earned Rs.1000/- per day for a period of 25 days. Thus, the revision petitioner’s notional income is fixed @ Rs.25,000/- per month. Thus, I am of the definite view that the revision petitioner is legally bound to maintain the respondent. 18. On a perusal of the impugned order, I find the Family Court has ordered the revision petitioner to pay monthly maintenance to the respondent at different rates on the basis of the very same income of the revision petitioner, which I hold is erroneous and wrong. After fixing the notional income of the revision petitioner, the Family Court ought to have 12 R.P (FC) No.442 of 2023 ordered only a fixed amount as monthly maintenance allowance to be paid to the respondent. Going by the scheme of Chapter IX of the Code, it would show that in case of change of circumstances, either party to the application can always file a petition for alteration of maintenance allowance, including its cancellation. At any rate, the Code does not contemplate an anticipatory order to be passed with escalated enhancement that too without any cogent materials on record. Therefore, I hold that the course adopted by the Family Court is unheard of and is irregular. I feel that an amount of Rs.4,000/- would be a reasonable amount to be paid by the revision petitioner as maintenance. 13 R.P (FC) No.442 of 2023 19. After bestowing my anxious consideration to the pleadings and materials on record, I am of the view that other than the quantum of maintenance fixed by the Family Court, there is no illegality, impropriety or irregularity in the impugned order. 20. In the result, (i) The revision petition is partly allowed. (ii) The revision petitioner is directed to pay monthly maintenance allowance to the respondent @ Rs.4,000/- from January, 2018 until further orders. (iii) The parties would be at liberty to move the Family Court for alteration of the maintenance allowance under Sec.127 of the Code, if there is any change of circumstances. 14 R.P (FC) No.442 of 2023 (iv) The revision petitioner shall pay the entire arrears of maintenance due as per this order in three equated and successive monthly instalments commencing from 7.1.2024. (v) If the revision petitioner fails to pay the amount as ordered above, the respondent would be at liberty to execute the order in accordance with law. SD/- sks/7.12.2023 **C.S.DIAS, JUDGE**