Ajisha v. Ratheesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936** **RP(FC)NO. 123 OF 2012 () ------------------------** **AGAINST THE ORDER IN MC NO.225/2011 OF FAMILY COURT,KOZHIKODE DATED 31.01.2012.** **----------------------------** **REVISION PETITIONER(S)/PETITIONER :** **----------------------------------** **AJISHA, AGED 21 YEARS, D/O ASOKAN, MEEKUNNATH THAMARATH, CHATHAMANGALAM P.O., CHATHAMANGALAM, KOZHIKODE-673601.** **BY ADVS.SRI.SANTHARAM.P SMT.REKHA ARAVIND** ## **RESPONDENT(S)/RESPONDENT :** **--------------------------** **RATHEESH S/O RAJAN, AMBALAVALAPPIL, THAMBI ROAD NADUVATTOM, BEYPORE, 673015. (BEYPORE PSL).** **BY ADVS. SRI.K.M.FIROZ** **SMT.M.SHAJNA** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 17-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** **RP(FC)NO. 123 OF 2012 ()** ## **APPENDIX** ## **PETITIONER(S) ANNEXURES :** **ANNEXURE 1 : COPY OF THE JUDGMENT DATED 08.02.2012 IN O.P. 658 OF 2011 OF THE FAMILY COURT, KOZHIKODE.** **ANNEXURE 2 : COPY OF THE ORDER DATED 08.02.2012 IN O.P.NO.658 OF 2011 OF FAMILY COURT, KOZHIKODE.** **RESPONDENT(S) ANNEXURES : NIL** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** ## **C.R.** ## **K. RAMAKRISHNAN,J -------------------------------R.P. (FC) No.123 of 2012 -------------------------------Dated this the 17[th ] day of November 2014** ## **O R D E R** The petitioner in M.C. No.225 of 2011 on the file of the Family Court, Kozhikode is the revision petitioner herein. The revision petitioner is the wife of the respondent and their marriage has taken place on 06.02.2011 as per custom and they are relatives as well. After marriage, they were living together only for sometime. It is alleged in the petition that, at the time of marriage, she was made to believe that he is a concrete worker and after marriage, it was revealed that he is working in a burial ground and doing the job of burning dead bodies and thereby, they have cheated her. Further, it is contended that 20 sovereigns of gold ornaments which were given to her at the time of marriage were misappropriated and she has been subjected to cruelty demanding more dowry by the family members of the respondent. It is also contended that the respondent used to come drunk, used to ill treat her and started consumption of liquor with his friends and relatives in the R.P. (FC) No.123 of 2012 2 house making it as a bar. Though it was objected by her, she was harassed on that ground also. They were freely entering in to her room in the house affecting her privacy and he used to come late and sometimes he did not come to the house also. He is spending more amount for consuming liquor. She was ill treated both physically and mentally. Since the ill treatment continued, she left the house on 15.05.2011 and as per the mediation, she came back on the undertaking given by the respondent that he will not consume alcohol, will not ill treat her, will not go for work in the burial ground etc. and she came back on 17.06.2011 and they lived together for 2 days but, there was no change in the attitude of the respondent. She was ejected from the house and she had to leave the house on 28.06.2011. Though, a complaint was filed to the Marad Police, they did not take any action. She has no independent income to maintain herself. She was pregnant at the time when this petition was filed. He was getting an income not less than Rs.10,000/- per month and he is not providing any maintenance after she left the house. She requires Rs.3,000/- for maintenance. So she ## R.P. (FC) No.123 of 2012 3 filed this petition for getting maintenance under Sec.125 of the Code of Criminal Procedure. 2. Respondent appeared and filed counter admitting the marriage but, denied the allegations made in the petition. He denied all the allegations raised against him. The fact that he was helping his father in the burial work is known to the revision petitioner, as they were relatives. Mother and father of the petitioner used to come to their house and take her back to their house and earlier he did not object the same and later they wanted him also to come and stay with them and she voluntarily left the house. Though he is prepared to give up the work in the burial ground she is not prepared to come and live with him. The other allegations are false and the petitioner is not entitled to get any maintenance as she is living separately without any reasonable or justifiable ground. So he prayed for dismissal of the application. 3. The petitioner was examined as PW1 and the respondent was examined as RW1 and B1 was marked on his side. After considering the evidence on record, the R.P. (FC) No.123 of 2012 4 Court below has come to the conclusion that she is residing separately without any reasonable cause or justifiable ground and he is not entitled to get maintenance and dismissed the application. Aggrieved by the same, the present revision has been filed by the revision petitioner who is the petitioner before the Court below. ## 4. Heard both sides. 5. Learned counsel for the revision petitioner submitted that the reasoning given by the Court below for denying maintenance to the petitioner is not sustainable in law. Further, she had categorically stated that she is not willing to go to their house not because the house is situated near the burial ground but, on account of the ill treatment she had met at their house. Even after mediation when she went back, the ill treatment continued and there is no change in the attitude. So the reason given by the Court below is not proper and not justifiable and it requires interference. Further, the offer made by the respondent is also without bonafides. The petition for restitution of the conjugal rights, filed by the ## R.P. (FC) No.123 of 2012 5 respondent was dismissed by the Family Court. That also can be considered by this Court as subsequent event to come to the conclusion that the reasons stated by the Court below is not proper for denying maintenance. 6. On the other hand, the learned counsel for the respondents submitted that he never ill treated the revision petitioner. She wanted to live in her house and she wanted him also to come and live with her in their house for which, he was not amenable and at the instigation of the family members, she is now living in that house. Further, the decision of the Family Court in the petition for restitution of conjugal rights is not binding on the proceedings under Sec.125 of the Code. Further, the Court will have to consider the evidence available in that case for coming to an independent conclusion and the Court below had considered those aspects and rightly come to the conclusion that she is living separately without any justifiable ground. Further, the Court is satisfied with the offer made by the revision petitioner that has to be considered by the Court as to whether it is bonafide or not and if the offer is bonafide R.P. (FC) No.123 of 2012 6 and the petitioner did not come and live with him, then, by virtue of Sec.125 (4) of the Code, the revision petitioner is not entitled to get maintenance and the Court below was perfectly justified in denying maintenance to the revision petitioner. 7. It is an admitted fact that the respondent herein married the revision petitioner on 06.02.2011 as per custom and they were living together for sometime in his house. It is also an admitted fact that the revision petitioner is none other than the 1[st] cousin of the respondent. So it cannot be said that they were not aware of each others family background earlier. The case of the revision petitioner was that, at the time when the marriage has taken place, she was made to believe that he is a concrete worker and later, after marriage, it is revealed that he is working in a burial ground and not a concrete worker and he is consuming alcohol and behaving cruelly with her. It is true that under Sec.125(4) if the respondent had taken a ground that she is living separately without any justifiable cause and the offer made by him is bonafide then, the Court will have to R.P. (FC) No.123 of 2012 7 consider those aspects also before coming to the conclusion that the petitioner is entitled to get maintenance or not. The burden is on the petitioner to prove her reasons for living separately as well. This was so held in the decisions reported in **A.S.N. Nair v. Sulochana [1981 KHC 311] and Mammad V. Rukhiya [1978 KHC 211].** In the later decision, it was observed that even at the time of execution, if the offer is made, Court will have to find out whether the offer is bonafide or not. But in the decision reported in **Sunitha** **Kachwaha and Others V. Anil Kachwaha [2014 (4) KHC (SN) 15 (SC)],** the Honourable Supreme Court has held that since the proceedings under Sec.125 of the Code is summary in nature, it is not necessary for the Court to ascertain as to who was wrong and the minute details of matrimonial dispute. Therefore, maintenance cannot be denied for the reason that the wife had left the matrimonial home without reasonable cause or justifiable ground. The fact that the wife is a qualified post graduate would not be sufficient to hold that she is in a position to maintain herself. Merely because the wife is earning R.P. (FC) No.123 of 2012 8 something, that also would not be a ground to reject her claim for maintenance. Further, it is a summary procedure the Court need not go into the details of the dispute as well. With this principle in mind, the case in hand has to be considered. In this case, the petitioner was examined as PW1 and the respondent was examined as DW1. PW1 had categorically stated that there was a mediation and on the basis of which, an undertaking was given by the respondent that he will not consume alcohol and he will go for some other work and maintain her and he will not ill treat her. When she came back, the things did not change and when she questioned his activities, she was sent out of the house. This aspect has not been challenged in cross examination of PW1. It is true that some suggestions have been given in the cross examination of PW1 that if he is prepared to go for some other work, whether she is willing to come. For which, she had stated that she is not interested in coming. The entire reading of the deposition of PW1 will go to show that the respondent herein used to come drunk and he used to drunk in the house itself with his friends and R.P. (FC) No.123 of 2012 9 other relatives that has caused agony to the petitioner. Inspite of the resistance made by her, it continued. Except the bare denial on this when he was examined as RW1 on this aspect, no effective evidence has come from his side also. She had categorically stated when she was cross examined that, she is not prepared to live with him as their house is situated near to the burial ground she answered in the negative. All these things will go to show that it is not because the house is situated near to the burial ground that she is not willing to live in that house and it is because of the attitude of the respondent which she had narrated in the evidence. Further, there is no offer as contemplated as under Sec.125(4) has been made by the revision petitioner either in the counter statement or in his evidence except stating that the revision petitioner is residing separately without any reasonable cause. So, that also will go to show that the offer cannot be said to be bonafide. Only if an offer has been made and it has been projected as a defence then only, that will have to be considered by the Court as to whether the offer made is bonafide or not. On the other hand, what is ## R.P. (FC) No.123 of 2012 10 done by the respondent is that he had only filed a counter statement denying the allegations and justifying his non payment of maintenance and nothing more. The same thing has been repeated in his evidence as well. 8. So under the circumstances, the submissions made by the counsel for the respondent that the offer made by him is bonafide and the Court below was justified in denying maintenance to the petitioner cannot be accepted. 9. Further, it was in away admitted that after the disposal of this petition for restitution of conjugal rights which was pending when the maintenance proceedings were pending before the Family Court was later dismissed by the Family Court and an appeal against that is pending. That also will give an indication that the Family Court after analysing the evidence in that case found that she is living separately with reasonable and justifiable reason and ground. So under the circumstances, the Court below had not properly appreciated the evidence before coming to the conclusion that the revision petitioner is not entitled to get any R.P. (FC) No.123 of 2012 11 maintenance and mis appreciation of evidence in a proceedings of this nature will amount to irregularity and that is amenable for correction under the revisional jurisdiction by this Court. So, the finding of the Court below that the revision petitioner is living separately without any reasonable or justifiable ground is unsustainable in law and the same is liable to be set aside. 10. If that finding is set aside, then automatically, the liability to pay maintenance to the petitioner by the respondent will arise. Admittedly, after she left the house he did not pay any maintenance to her as well. He had no case that he is not capable of doing any work or earning anything. His case is that he is helping his father when he is not well in the burial ground. That is not a ground for coming to the conclusion that he is unable to maintain his wife. Once it is proved by the petitioner that he is an able body person capable of doing work and earn something then he is bound to provide reasonable maintenance to his wife for her livelihood. He had admitted that he is going for cooli ## R.P. (FC) No.123 of 2012 12 work and a cooli will get Rs.300/- to Rs.350/- per day. Further he had stated that he did not know the present rate of remuneration for a cooli worker that is being paid there. One can understand the income derived by a cooli worker nowadays. So considering those aspects, it can be presumed that he may be getting atleast Rs.400/- per day and he will be getting atleast Rs.10,000/- per month as income and if that be the income, he can able to provide atleast Rs.2,500/- per month as maintenance to the petitioner as well. So the respondent herein is liable to pay maintenance at the rate of Rs.2500/- per month from the date of petition as the proceedings are pending from 2011 onwards, as it is settled law that if the matter is pending for long time, then the Court is justified in ordering maintenance from the date of petition and it is also settled law that there is no special reasons need be given by the Court for ordering maintenance from the date of petition but reasonings have to be given for ordering maintenance to the petitioner if that is objected by the counter petitioner. 10. So under the circumstances, the order R.P. (FC) No.123 of 2012 13 passed by the Court below dismissing the petition is set aside and the same is allowed and the respondent is directed to pay maintenance at the rate of Rs.2,500/- per month to the revision petitioner from the date of petition. Considering the fact that huge amount will be in arrears, five months time is granted to the revision petitioner to pay the amount in equal monthly instalments. If any default is committed, the revision petitioner is at liberty to move the execution Court for executing the order. With the above observation, the revision is allowed. Office is directed to communicate this order to the Court below at the earliest. Sd/- **K. RAMAKRISHNAN JUDGE** / True Copy / NS P.A. To Judge