Aboobacker Siddique v. Sajida

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ## **`RPFC NO. 496 OF 2023`** ``` AGAINST THE ORDER IN MC 227/2013 OF FAMILY COURT, TIRUR ``` ## **`REVISION PETITIONER/RESPONDENT:`** ``` ABOOBACKER SIDDIQUE AGED 36 YEARS S/O.YAHOO, KIZHAKKEVALAPPIL HOUSE, POOKKAITHA, THALUKKARA, MANGALAM P.O., TIRUR TALUK, TIRUR POLICE STATION LIMIT. ``` ``` BY ADVS. K.M.FIROZ S.KANNAN M.SHAJNA UMMUL FIDA ``` ## **`RESPONDENT/RESPONDENT:`** ``` SAJIDA, AGED 29 YEARS, D/O.MUHAMMED, MAMBATTA HOUSE, THEKKAN KUTTUR P.O., PULLUR, TIRUR TALUK, TIRUR POLICE STATION LIMIT-676 101. ``` ``` BY ADV SRI.JAMSHEED HAFIZ ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ``` ``` ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`R.P(F.C.) NO. 496 OF 2023 2`** **Dated this the 11[th] day of December, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C. No.227/2013 of the Family Court, Tirur, ordering the revision petitioner to pay the respondent - his wife - monthly maintenance allowance @ Rs.3000/- from the date of petition. The revision petitioner was the respondent and the respondent was the petitioner before the Family Court. ## **Brief facts** 2. The respondent had filed the application under Section 125 of the Code of Criminal Procedure (‘Code’, for short), claiming monthly maintenance allowance from the revision petitioner. It was the case of the respondent that, she was married to the revision petitioner on 13.11.2005. Two years after the marriage, the attitude of the revision petitioner had changed. He treated the respondent with mental and physical cruelty. Thereafter, ## **`R.P(F.C.) NO. 496 OF 2023 3`** the revision petitioner refused to maintain the respondent, despite doing construction work and earning Rs.20,000/- per month. Hence,the application. 3. The revision petitioner had resisted the application and contended that the respondent left the matrimonial home without sufficient cause. Inspite of best efforts made by the revision petitioner, the respondent has refused to resume co-habitation. Although, he filed a petition for a decree for restitution of conjugal rights before the Family Court, Malappuram, which was subsequently transferred to the Family Court, Tirur and numbered as O.P. No.145/2013, the respondent failed to return to his marital consortium. The revision petitioner is only a coolie worker and does not have the means to maintain himself. Hence, the application may be dismissed. 4. The respondent has also filed O.P. No.187/2013 for a decree for return of patrimony and past maintenance. ``` R.P(F.C.) NO. 496 OF 2023 4 ``` 5. The Family Court consolidated and jointly tried the three proceedings. 6. In the trial, the respondent and witness were examined as PWs1 and 2 and Exts.P1 to P3 were marked in evidence. The revision petitioner was examined as RW1 and Exts. R1 and R2 were marked on his side. 7. The Family Court, after analysing the pleadings and materials on record, by its common judgment, partly allowed the application, by directing the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.3000/- from the date of petition. The revision petitioner’s petition for restitution of conjugal right was dismissed and the respondent’s petition for return of patrimony and past maintenance was partly allowed. 8. It is assailing the impugned order in the maintenance application; the revision petition is filed. 9. Heard; Sri. Firoz K.M., the learned counsel appearing for the revision petitioner and Sri.Jamsheed ## **`R.P(F.C.) NO. 496 OF 2023 5`** Hafiz, the learned counsel appearing for the respondent. 10. Is there any illegality, irregularity or impropriety in the impugned order? 11. The revision petitioner has admitted his marriage with the respondent. The revision petitioner’s principal defence was that, the respondent was living separably from him without sufficient cause. 12. It is undisputed that the revision petitioner’s petition for a decree for restitution of conjugal rights has been dismissed by the Family Court by the common judgment. Therefore, the revision petitioner’s contention that the respondent is living separately from him without sufficient cause is no longer sustainable in law. 13. Now, the only question that survives in the revision petition is whether the quantum of maintenance awarded by the Family Court is reasonable and justifiable. 14. The respondent’s case in the petition was that, the revision petitioner is doing construction work and **`R.P(F.C.) NO. 496 OF 2023 6`** earning Rs.20,000/- per month. The revision petitioner’s defence was that he is only a coolie worker and having work only for 15 days in a month. Moreover, the respondent is working as a home nurse. 15. 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. 16. 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. 17.In . **Bhuwan Mohan Singh v. Meena & Ors** ``` R.P(F.C.) NO. 496 OF 2023 7 ``` [(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 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. 18. It is well settled in a plethora of judgments that the Courts are permitted to do some guesswork in arriving at the notional income of the husband/father and fixing the quantum of maintenance. 19. The revision petitioner's main defence was that the respondent is working as a home nurse and she has means to maintain herself. Although the revision petitioner has made the said assertion, there is no **`R.P(F.C.) NO. 496 OF 2023 8`** material on record to prove the same. Hence, the said allegation is to be rejected. On the contrary, the respondent contended that the revision petitioner is a construction worker and is earning Rs.20,000/- per month. The revision petitioner has just bluntly denied the said assertion and contended that he gets work only for 15 days . 20. Admittedly, there is no material on record to prove that the revision petitioner is suffering from ailment or disability. Therefore, the revision petitioner is deemed to be an able bodied person. By any stretch of imagination an able bodied person would have earned at least Rs.1000/- per day in the year 2013. Even assuming that the revision petitioner has work only for 15 days, he would have earned Rs.15000/- per month. Hence, his notional income is fixed at Rs.15,000/- per month. Therefore, I am of the definite view that the impugned order passed by the Family Court, ordering the revision petitioner to pay the respondent monthly maintenance @ ## **`R.P(F.C.) NO. 496 OF 2023 9`** Rs.3000/- is reasonable and justifiable. I do not find any error, illegality or impropriety in the impugned order warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition is meritless and without substance. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders passed by this Court, he would be entitled to adjust the deposited amount while paying the arrears of maintenance due as per the impugned order. **SD/-** **C.S.DIAS, JUDGE** rmm11/12/2023