Anil G.L. v. Jisha Devidson and Adish J. Anil

1 RP(FC) No.260 of 2016 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ``` RPFC NO. 260 OF 2016 AGAINST THE ORDER/JUDGMENT MC 496/2015 OF FAMILY COURT, ``` ## **`NEDUMANGAD`** ## **`REVISION PETITIONER/S:`** ``` ANIL G.L. S/O.GEORGE, ANIL BHAVAN, KOTTAMUKAL,ORUTTAMBALAM, MARANALLOOR VILLAGE,NEYYATINKARA TALUK, THIRUVANANTHAPURAM. BY ADVS. SRI.VINOD RAVINDRANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR SHRI.ANISH ANTONY ANATHAZHATH ``` ## **`RESPONDENT/S:`** ``` 1JISHA DEVIDSON D/O.SELIN DEVID, VALLIKADAVU, NEERAMANKADAVU, MITHRMALA P.O.,VAMANAPURAM, THIRUVANANTHAPURAM- 695606. 2ADISH.J.ANIL S/O.ANIL.G.L., (MINOR REPRESENTED BY GUARDIAN MOTHER 1ST RESPONDENT) RESIDING AT -DO-, DO. BY ADV SRI.P.V.ANIL ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RP(FC) No.260 of 2016 **C.S DIAS,J. --------------------------RP(FC) No.260 of 2016 ----------------------------Dated this the 13[th] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.496/2015 of the Family Court, Nedumangad, ordering the revision petitioner to pay the respondents – his wife and child - monthly maintenance allowance @ Rs.9000/- and Rs.4,000/- respectively, from the date of petition (17.12.2015). The revision petitioner was the respondent and the respondents were the petitioners in the above application. 3 RP(FC) No.260 of 2016 ## **Brief facts** 2. The respondents had filed the application under Sec.125 of the Code of Criminal Procedure (in short, ‘Code’), seeking monthly maintenance allowance from the revision petitioner. It was their case that the first respondent is the wife of the revision petitioner and the second respondent is the child born in their wedlock on 19.3.2013. The revision petitioner deserted the respondents since 1.1.2014. The respondents are unemployed and have no means to sustain themselves. The revision petitioner is employed as a Senior Engineer in Southern Railway and is drawing a monthly salary of Rs.60,000/-. Hence, the application. 3. The revision petitioner resisted the application by filing a written objection and contending that there is 4 RP(FC) No.260 of 2016 no marriage between him and the first respondent. He has instituted OP No.275/2015 before the same Court, for a declaration as to his marital status with the first respondent. Nonetheless, he admitted that the second respondent is the child born in his relationship with the first respondent. He also contended that the first respondent has sufficient means to maintain herself. Hence, the application may be dismissed. 4. The first respondent was examined as PW1 and Exts P1 to P3 were marked in evidence. The revision petitioner was examined as CPW1 and Exts R1 and R2 were marked on his side. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision 5 RP(FC) No.260 of 2016 petitioner to pay the respondents monthly maintenance allowance. 6. It is challenging the said order; the present revision petition is filed. 7. Heard; Smt.Meena.A, the learned counsel appearing for the revision petitioner and Sri.Anil P.V, the learned counsel appearing for the respondents. 8. The learned counsel appearing for the revision petitioner argued that the Family Court has failed to take note of the fact that there was no valid marriage between the revision petitioner and the first respondent. Going by the materials on record, it is evident from Ext P1 original petition that the first respondent’s marriage was in force with her husband on the date of the alleged solemnisation of the marriage between her and the 6 RP(FC) No.260 of 2016 revision petitioner. The parties are Christians. As per Sec.19(4) of the Divorce Act, 1869, there should not be any marriage in force as on the date of solemnisation of the marriage between the parties. The admitted materials on record prove that the first respondent’s marriage was in force. Hence, the application of the first respondent is liable to be rejected. 9. The learned Counsel appearing for the respondents, on the contrary, vehemently countered the above submission and argued that the validity of the marriage cannot be questioned in an application under Section 125 of the Code, especially after the revision petitioner has admitted the solemnisation of his marriage with the first respondent. He placed reliance on the decisions of the Honourable Supreme Court in **Pyla** 7 RP(FC) No.260 of 2016 **Mutyalamma @ Satyavathi vs. Pyla Suri Demudu and another** [2011 KHC 4708] and this Court in **Sivadasan P.K. vs. Jainy and another** [2021 (2) KHC 242] to bolster his submission that the validity of a marriage cannot be adjudicated in a proceeding under Section 125 of the Code. He prayed that the revision petition be dismissed. 10. Is there or any illegality, impropriety irregularity in the impugned order ? 11. 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, 8 RP(FC) No.260 of 2016 so as to prevent them from falling into destitution and vagrancy. 12. 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. 13. 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 9 RP(FC) No.260 of 2016 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 able bodied and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 14. The respondents’ case in the application was that the first respondent was married to the revision petitioner on 9.11.2011 and the second respondent was born in the wedlock on 19.3.2013. Although the revision petitioner was working in the Southern Railway and drawing a monthly salary of Rs.60,000/-, he has refused to maintain the respondents. 15. The revision petitioner’s defence was that the first respondent’s marriage was in subsistence on the 10 RP(FC) No.260 of 2016 date of the alleged solmnization of marriage between the revision petitioner and the first respondent. He has already filed OP No.275/2015 to declare his marriage with the first respondent ‘null and void’ in view of the contravention of Sec.19(4) of the Divorce Act. He also had a defence that the first respondent is having sufficient income and is in a position to maintain herself. Nonetheless, he admitted the paternity of the second respondent. 16. In **Pyla Mutyalamma** (supra) it is held that, if a husband wishes to impeach the validity of the marriage, he will have to institute a declarative suit in the civil court, and secure a decree. The said question cannot be decided in a proceeding under Section 125 of the Code. 11 RP(FC) No.260 of 2016 The above view has been reiterated by this Court in **Sivadasan** (supra). 17. In the case on hand, indisputably, there is nothing on record to establish that the marriage between the revision petitioner and the first respondent is a nullity. On the contrary, it is not disputed that the revision petitioner and the first respondent had cohabited for a long period and the second respondent was born in the said relationship. 18. It is nigh well-settled, if there is a specific pleading in an application under Sec.125 of the Code that there is a valid marriage between the couple, the same is sufficient to decide the application. Therefore, merely by filing an application to declare the marriage ‘null and void’ is insufficient to reject the application 12 RP(FC) No.260 of 2016 filed by the first respondent. Hence, the finding of the Family Court that there is a presumption of marriage between the revision petitioner and the first respondent is justifiable and tenable. Hence, I confirm the said finding. 19. Now, coming to the quantum of maintenance awarded by the Family Court. 20. Although the revision petitioner contended that the first respondent has means to maintain herself, there is nothing on record to establish her alleged income. On the other hand, the revision petitioner does not dispute the fact that he is employed in the Southern Railway and drawing a salary of Rs.50,000/- per month. 21. The Family Court, taking into account the status and standard of living of the revision petitioner, 13 RP(FC) No.260 of 2016 has fixed the quantum of maintenance at Rs.9,000/- and Rs.4,000/- , respectively. 22. After bestowing my anxious consideration to the pleadings and materials on record, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court under Sec.19(4) of the Family Courts Act, 1964. Nonetheless, the revision petitioner would be at liberty to seek for a declaration as to his marital status with the first respondent and, if successful, then take up the defence by way of an appropriate application. The revision petition is meritless and is only liable to be dismissed. 23. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount pursuant to the interim order 14 RP(FC) No.260 of 2016 passed by this Court, he would be entitled for adjustment of the deposited amount while paying the arrears as per the impugned order. SD/- sks/13.11.2023 **C.S.DIAS, JUDGE**