AROGYAM v. LITHI, ABHISHEK and JOYAL

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 ``` ## `RPFC NO. 368 OF 2016` ``` AGAINST THE ORDER DATED 23.06.2016 IN MC NO.260/2014 OF FAMILY COURT,THIRUVANANTHAPURAM ``` ## `REVISION PETITIONER/COUNTER PETITIONER:` ``` AROGYAM, AGED 35 YEARS, S/O.DASAN, THULAVILA COLONY, KOTTAPPURAM PO,VIZHINJAM, THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.S.MOHAMMED AL RAFI ``` ## `RESPONDENTS/PETITIONERS:` ``` 1LITHI, D/O.METILDA, THULAVILA COLONY, KOTTAPPURAM PO, VIZHINJAM, THIRUVANANTHAPURAM-695 521 ``` ``` 2ABHISHEK, S/O.AROGYAM, AGED 4 YEARS, THULAVILA COLONY,KOTTAPPURAM PO, VIZHINJAM, THIRUVANANTHAPURAM-695 521 3JOYAL, S/O.AROGYAM, AGED 3 YEARS, THULAVILA COLONY,KOTTAPPURAM PO, VIZHINJAM, THIRUVANANTHAPURAM-695 521 (RESPONDENT NO.2 AND 3 MINORS ARE REPRESENTED BY GUARDIAN MOTHER, 1ST RESPONDENT) ``` ``` BY ADV SRI.D.AJITHKUMAR ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.368/2016 -:2:- Dated this the 27[th] day of November,2023 ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order in M.C.No.260/2014 of the Family Court, Thiruvananthapuram, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.4,000/- to the first respondent, Rs.3,000/- to the second respondent and Rs.2,500/- to the third respondent – his – wife and two children from the date of application(17.09.2014). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts:** 2. The respondents had filed the application under Section 125(1) of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), seeking monthly maintenance allowance from the R.P.(FC)No.368/2016 -:3:- revision petitioner. It was their case that the first respondent was married to the revision petitioner on 23.08.2010 and the respondents 2 & 3 are the children born in the wedlock. Although the revision petitioner was employed abroad as a Driver and earning Rs.1,00,000/- per mensem, he has willfully refused to maintain the respondents. The respondents require monthly maintenance allowance @ Rs.6,000/- to the first respondent and Rs.3,000/- each to the respondents 2 & 3. Hence, the application. 3. The revision petitioner resisted the application by filing a written objection, refuting the allegations in the application. He admitted the marriage and the paternity of the children. It was his case that the first respondent was living separately from him without sufficient cause. She was doing tailoring work and earning a monthly income of Rs.10,000/-. He had purchased a landed building, wherein the respondents are residing and the first R.P.(FC)No.368/2016 -:4:- respondent has given a portion of the building on a monthly rent of Rs.5,000/-. The revision petitioner lost his job abroad and is presently an auto rickshaw driver earning a meager income. He has to maintain his parents. Hence, the application may be dismissed. 4. In the trial, the first respondent was examined as PW1 and Exts P1 to P6 were marked through her in evidence. The revision petitioner was examined as CPW1 and Exts R1 to R3 were marked on his side. 5. The Family Court, after analysing the pleadings and materials placed on record, by the impugned order, partly allowed the application, by directing the revision petitioner to pay the respondents monthly maintenance allowance as already observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri. S.Mohammed Al Rafi, the learned R.P.(FC)No.368/2016 -:5:- counsel appearing for the revision petitioner and Sri. D. Ajithkumar, the learned counsel appearing for the respondents. 8. Is there any illegality, impropriety or irregularity in the impugned order? 9. The revision petitioner admits his marriage with the first respondent and the paternity of the respondents 2 & 3. 10. The respondents' case is that, although the revision petitioner was employed abroad and earning a monthly income of Rs.1,00,000/-, he has refused to maintain them. 11. The revision petitioner’s defence was that the first respondent was living separately from him without sufficient cause. Moreover, the first respondent is employed as a Tailor and earning Rs.10,000/- per month. She is also getting rental income of Rs.5,000/-. 12. In the celebrated decision in **Rajnesh v. Neha and Anr.** [2020 (6) KHC 1], the Hon'ble R.P.(FC)No.368/2016 -:6:- 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. 13. 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. 14. 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 R.P.(FC)No.368/2016 -:7:- 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. 15. 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. 16. Even though the revision petitioner has taken up a defence that the first respondent was living separately from him without sufficient cause, he has not taken any steps to demand the first respondent to go and live with him or file any petition seeking a decree for restitution of conjugal rights. He has also not produced any material to prove that the first respondent is earning Rs.15,000/- per month, as alleged in his written objection. R.P.(FC)No.368/2016 -:8:- 17. The revision petitioner’s another defence was that he was only working as an auto rickshaw driver and was earning a meager income. 18. It is well-settled in **Bhuwan Mohan Singh** (supra) that, an able bodied person is bound to maintain his wife and children, even by doing physical labour. 19. In the case on hand, the revision petitioner was aged 33 years at the time of application. There is no material to show that he is suffering from any ailment. Therefore, he is assumed to be an able bodied person. An able bodied person in the year 2014 would have earned an average monthly income of Rs.25,000/-. Therefore, I am of the definite view that the quantum of maintenance fixed by the Family Court is reasonable and justifiable. 20. On an overall consideration of the pleadings and materials on record and the law on the point, I do not find any illegality, impropriety or irregularity in the R.P.(FC)No.368/2016 -:9:- impugned order warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merits and is only liable to be dismissed. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order. Sd/- ## **C.S.DIAS,JUDGE** DST/27.11.23 //True copy// P.A. To Judge