Alphonsa Joseph @ Alphonsa Rose Joseph and Aria Elsa Joseph v. Anand Joseph @ Anand Vellapatti Joseph and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940** ## **OP(Crl.).No. 274 of 2018** **AGAINST THE ORDER IN MC 219/2017 of FAMILY COURT, IRINJALAKUDA** ## **PETITIONERS/PETITIONERS IN M.C.NO.219 OF 2017:** **1 ALPHONSA JOSEPH @ ALPHONSA ROSE JOSEPH, AGED 32 YEARS, DAUGHTER OF SRI.JOSE KANICHAI, RESIDING AT KANICHAI HOUSE, ANNALLOOR, CHALAKUDY, THRISSUR - 680 731.** **2 ARIA ELSA JOSEPH, AGED 4 YEARS, DAUGHTER OF SRI. ANAND JOSEPH, RESIDING AT KANICHAI HOUSE, ANNALLOOR, CHALAKUDY, THRISSUR - 680 731, REPRESENTED BY HER MOTHER AND NEXT FRIEND ALPHONSA JOSEPH - THE 1ST PETITIONER.** **BY ADVS. SRI.C.S.DIAS SMT.MARIA ELIZABETH WILSON SMT.P.K.DHANYA SRI.N.K.SUBRAMANIAN** ## **RESPONDENTS/1ST RESPONDENT IN M.C.NO.219 OF 2017 & STATE OF** **KERALA:** **ANAND JOSEPH @ ANAND VELLAPATTIL JOSEPH, AGED 35 YEARS, SON OF SRI.JOHN P.JOSEPH, PERMANENT RESIDENT OF VELLAPPATTIL HOUSE, THUMPOLY, ALLEPPEY - 688 008 AND PRESENTLY RESIDING AT 103 REEM RESIDENCY, KARAMA, DUBAI, U.A.E.** **BY ADVS. SMT.K.KUSUMAM SRI.K.KALESH** **PP. SMT. M.K. PUSHPALATHA** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP(Crl.).No. 274 of 2018 2 ## **JUDGMENT** The petitioners herein are the wife and minor daughter of the 1[st] respondent. 2. The petitioners approached the Family Court, Irinjalakuda and filed a petition under Section 125(1) of the Cr.P.C contending inter alia that the 1[st] respondent is an affluent person with sufficient means and that he has neglected and refused to maintain them. Along with the main petition, an application for interim maintenance was filed claiming maintenance at the rate of Rs.50,000/- per month. 3. The 1[st] respondent entered appearance and filed an elaborate counter. He filed a memo undertaking to pay interim maintenance to the 2[nd] petitioner at the rate of Rs.20,000/- per mensem. He also undertook to remit the school fees directly to the school. However, in Paragraph No.3 of the memo, he has stated as follows: “ _3. It is made clear that since the petitioner/wife is a qualified doctor having BDS degree and refuses to work and earn for herself, the respondent is not willing to provide maintenance to her._ ” OP(Crl.).No. 274 of 2018 3 4. The learned Family Court accepted the memo as such and refused to grant interim maintenance to the wife. The exact amount offered by the 1[st] respondent was granted to the child. 5. The learned counsel appearing for the petitioners would submit that the order passed by the court below is perverse. It is urged that no reasons have been assigned by the court below while refusing interim maintenance to the wife and while fixing a meager amount as maintenance for the minor child. According to the learned counsel, the Family Court has committed an egregious error in accepting the memo filed by the 1[st] respondent. The right of the wife and child to receive maintenance is indefeasible and the respondent/husband has no right to dictate terms, is the submission. The learned counsel has relied on the decisions of the Apex Court in **Bhuwan Mohan Singh v. Meena and Others** (AIR 2014 SC 2875) and **Sunita Kachwaha and Others** v. **Anil Kachwaha** (AIR 2015 SC 554) to hammer home his contentions. 6. The learned counsel appearing for the 1[st] respondent, on the other hand, submitted that the learned Family Court was clearly justified in refusing maintenance to the 1[st] petitioner, as it was evident OP(Crl.).No. 274 of 2018 4 that the wife was qualified and capable of earning for herself. It is further submitted that the wife had left the matrimonial home and has refused to live with the 1[st] respondent. She points out that the wife cannot insist that she would sit idle and expect the 1[st] respondent to shoulder her expenses in a petition filed under Section 125 of the Cr.P.C. The provision has been enacted to ameliorate the agony and financial suffering of a wife, who is not able to maintain herself and not to persons like the 1[st] petitioner, is the submission advanced. The learned counsel has referred to the decisions in **Mamta Jaiswal v. Rajesh Jaiswal II** [(2000) DMC 170], **Santhosh Sharma and others v. State of Rajasthan and Another** [2017 KHC 3635], **Monu Sohngra v. Pink** [2017 KHC 3706], **Deepak Verma v. Rashmi Verma** [2016 KHC 4001] and **Santhi E. v. Vasudev H.K** . [2005 KHC 5637] to substantiate her point. 7. I have considered the submissions advanced. Voluminous materials have been produced by either sides before this Court to substantiate their respective contentions. It is by now settled that the Family Court can pass interim maintenance orders pending the final disposal of a petition under Section 125 of the Cr.P.C. An elaborate OP(Crl.).No. 274 of 2018 5 enquiry is not contemplated at this stage. It appears from the order that the learned Family Court was persuaded by the memo filed by the husband and has refused maintenance to the wife on the sole ground that she is a qualified person and could maintain herself. No reasons have been stated by the Family Court other than making a reference to the memo filed by the 1[st] respondent. As held by the Apex Court in **Sunitha** (supra), even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright. In a case of instant nature, the learned Family Court should have applied its mind carefully before rejecting her prayer for maintenance holding that she has the potential to maintain herself. As held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity. The husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally OP(Crl.).No. 274 of 2018 6 permissible reasons and not on the strength of a memo filed by the husband. 8. Having considered all the relevant facts, I am of the considered view that the order passed by the Family Court cannot be sustained under law. The same is set aside. The Family Court is directed to pass fresh orders in the petition as expeditiously as possible, at any rate, within a period of one month from the date of production of a copy of this judgment. This original petition is disposed of. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A.TO JUDGE** IAP OP(Crl.).No. 274 of 2018 7 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF ORDER DATED 20.12.2016 IN O.P. (F.C)NO. 616 OF 2016 OF THIS HONOURABLE COURT. EXHIBIT P2 TRUE COPY OF M.C.NO. 219 OF 2017 DATED 24.10.2017 FILED BY THE PETITIONERS BEFORE THE FAMILY COURT, IRINJALAKUDA. EXHIBIT P3 TRUE COPY OF M.P.NO. 562 OF 2017 IN M.C.NO. 219 OF 2017 FILED BEFORE THE FAMILY COURT, IRINJALAKUDA. EXHIBIT P4 TRUE COPY OF OBJECTION FILED BY THE 1ST RESPONDENT TO EXHIBIT P3 APPLICATION DATED 12.04.2018 BEFORE THE FAMILY COURT, IRINJALAKUDA. EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 22.03.2018 PASSED BY THIS HONOURABLE COURT IN O.P.(F.C)NO.616 OF 2016. EXHIBIT P6 TRUE COPY OF ORDER DATED 14.05.2018 IN M.P.NO. 562 OF 2017 IN M.C.NO. 219 OF 2017 OF THE FAMILY COURT, IRINJALAKUDA. EXHIBIT P7 TRUE COPY OF CERTIFICATE DATED 06.07.2016 ISSUED BY THE FINANCE MANAGER OF THE 1ST RESPONDENT'S COMPANY. EXHIBIT P8 COPY OF THE LABOUR CONTRACT OF THE 1ST RESPONDENT AS ON 21.05.2013, ENTERED WITH BLUE RHINE GENERAL TRADING (LLC), DUBAI. EXHIBIT P9 COPY OF THE PUBLICATION MADE BY THE 1ST RESPONDENT ABOUT HIS COMPANY ON 30.04.2018 IN THE AUTHORITATIVE GUIDE TO PRINTING INDUSTRY IN THE MIDDLE EAST. EXHIBIT P10 COPY OF THE ARTICLE PUBLISHED BY 1ST RESPONDENT IN THE NEWS AND EVENTS OF LG BUSINESS SOLUTIONS ON 23.11.2017. RESPONDENTS' EXHIBITS: EXHIBIT R1(A) THE TRUE COPY OF INVOICE ISSUED BY MALABAR GOLD AND DIAMONDS, DUBAI DATED 02/05/2015.** OP(Crl.).No. 274 of 2018 8 **EXHIBIT R1(B) THE TRUE COPY OF RECEIPT OF THE PAYMENT DONE BY THE PETITIONER TO THE MALABAR JEWELLERY USING THE CREDIT CARD OF THE RESPONDENT DATED 02/06/2015** - **EXHIBIT R1(C) THE TRUE COPY OF THE INVOICE ISSUED BY BHIMA GOLD AND DIAMONDS, U.A.E DATED 21/08/2015.** - **EXHIBIT R1(D) THE TRUE COPY OF THE SALES INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 03/09/2015** - **EXHIBIT R1(E) THE TRUE COPY OF THE SALES INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 03/09/2015** - **EXHIBIT R1(F) THE TRUE COPY OF THE SALES INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 12/09/2015** - **EXHIBIT R1(G) THE TRUE COPY OF THE SALES INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 12.09.2015.** - **EXHIBIT R1(H) THE TRUE COPY OF THE RECEIPT OF THE PAYMENT DONE BY THE PETITIONER, TO THE AL FUTTAIM WATCHES, DUBAI, USING THE CREDIT CARD OF THE RESPONDENT DATED 12.09.2015** - **EXHIBIT R1(I) THE TRUE COPY OF THE INVOICE ISSUED BY “THE WATCH HOUSE”, DUBAI, DATED 10/10/2015.** - **EXHIBIT R1(J) THE TRUE COPY OF THE INVOICE ISSUED BY THE “THE WATCH HOUSE”, DUBAI, DATED 10/10/2015.** - **EXHIBIT R1(K) THE TRUE COPY OF THE RECEIPT OF THE PAYMENT DONE BY THE PETITIONER TO THE AL FUTTAIM WATCHES, DUBAI, USING THE CREDIT CARD OF THE RESPONDENT DATED 10/10/2015.** - **EXHIBIT R1(L) THE TRUE COPY OF THE SALES INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 12/10/2015.** OP(Crl.).No. 274 of 2018 9 **EXHIBIT R1(M) THE TRUE COPY OF THE INVOICE ISSUED BY THE SKY JEWELLERY, DUBAI, DATED 12/10/2015. EXHIBIT R1(N) THE TRUE COPY OF THE INVOICE ISSUED BY THE SKY JEWELLERY, DUBAI, DATED 22/12/2015. EXHIBIT R1(O) THE TRUE COPY OF THE PURCHASE INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 24/12/2015. EXHIBIT R1(P) THE TRUE COPY OF THE SALES INVOICE ISSUED BY THE KHAZANA JEWELLERY, DUBAI, DATED 24/12/2015. EXHIBIT R1(Q) THE TRUE COPY OF THE RECEIPT OF THE PAYMENT DONE BY THE PETITIONER TO THE LULU HYPERMARKET, DUBAI, USING THE CREDIT CARD OF THE RESPONDENT DATED 09/01/2016. EXHIBIT R1(R) THE TRUE COPY OF THE RECEIPT OF THE PAYMENT DONE BY THE PETITIONER TO THE LIFEWORKS PERSONAL DEVELOPMENT TRAINING, DUBAI USING THE CREDIT CARD BY THE RESPONDENT DATED 05/03/2016. EXHIBIT R1(S) THE TRUE COPY OF THE SALES INVOICE ISSUED BY KHAZANA JEWELLERY, DUBAI, DATED 29/03/2016. EXHIBIT R1(T) THE TRUE COPY OF OP(G&W)1785/2016, FILED BY THE RESPONDENT ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM AND NOW TRANSFERRED AND RENUMBERED AS OP.208/2018 ON THE FILE OF THE FAMILY COURT, IRINJALAKKUDA. EXHIBIT R1(U) THE TRUE COPY OF THE DRAFT OF THE RENT DEED SENT BY THE PETITIONER TO THE RESPONDENT IN HIS E-MAIL. EXHIBIT R1(V) THE TRUE COPY OF THE STATEMENT OF THE JOINT ACCOUNT AT THE FEDERAL BANK, PANAMPALLY NAGAR BRANCH FROM 02/05/2017 TO 20/10/2017.** OP(Crl.).No. 274 of 2018 10 **EXHIBIT R1(W) THE TRUE COPY OF THE MEMO DATED 09/07/2018 FILED BY MY COUNSEL ON MY BEHALF BEFORE THE FAMILY COURT AT IRINJALAKKUDA.** **EXHIBIT R1(X) THE TRUE COPY OF THE LABOUR CONTRACT, ISSUED TO THE RESPONDENT, BY THE MINISTRY OF HUMAN RSOURCES AND EMIRATISATION OF UAE.**