Arshad P.K. v. Fathima

1 RP(FC) No.429 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ``` RPFC NO. 429 OF 2016 ``` ## **`AGAINST THE ORDER/JUDGMENT MC 363/2015 OF FAMILY COURT, TIRUR`** ## **`REVISION PETITIONER/S:`** ``` ARSHAD P.K.,AGED 46 YEARS, S/O.KUNHU(LATE), PANDARATHIL HOUSE, CHIYANUR, ALAMGODE VILLAGE, KOKKUR P.O., MALAPPURAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER HABIRA, AGED 40 YEARS, D/O.KUNHU (LATE), RESIDING AT ALAMGODE AMSOM, CHIYYANNOOR DESOM, KOKKUR POST, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.SANTHOSH P.PODUVAL SMT.R.RAJITHA SMT.VINAYA V.NAIR ``` ## **`RESPONDENT/S:`** ``` 1FATHIMA,AGED 30 YEARS, D/O.MUHAMMED SHAFI, VADAKKEVEETTIL HOUSE, VELIYAMKODE AMSOM & DESOM, VELIYAMKODE P.O., AYYOTTICHIRA, PONNANI TALUK, MALAPPURAM DISTRICT-679 579. 2FIYA AYUNI ARSHAD (MINOR) D/O.FATHIMA VADAKKEVEETTIL HOUSE, VELIYAMKODE AMSOM & DESOM, VELIYAMKODE P.O., AYYOTTICHIRA, PONNANI TALUK, MALAPPURAM DISTRICT-679 579. FIYA AYUNI ARSHAD (MINOR) D/O.FATHIMA VADAKKEVEETTIL HOUSE, VELIYAMKODE AMSOM & DESOM, VELIYAMKODE P.O., AYYOTTICHIRA, PONNANI TALUK, MALAPPURAM DISTRICT-679 579. REPRESENTED BY HER MOTHER FATHIMA, AGED 30 YEARS, D/O.MUHAMMED SHAFI, VADAKKEVEETTIL HOUSE, VELIYAMKODE AMSOM & DESOM, VELIYAMKODE P.O., AYYOTTICHIRA, PONNANI TALUK, MALAPPURAM DISTRICT-679 579.(THE ADDRESS OF THE SECOND RESPONDENT AMENDED AS PER ORDER DATED 3.8.2016 IN CRL MA 4647/2016) BY ADVS. SRI.ASHWIN SETHUMADHAVAN SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.S.SABARINADH ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON ``` ``` 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RP(FC) No.429 of 2016 ## **C.S DIAS,J. --------------------------RP(FC) No.429 of 2016** **----------------------------Dated this the 10[th] day of November, 2023** ## **ORDER** The revision petition is filed assailing the order in M.C No.363/2015 of the Family Court, Tirur, directing the revision petitioner to pay the second respondent – his daughter - monthly maintenance allowance @ Rs.3000/- from the date of petition (30.9.2015). The revision petitioner was the respondent and the respondents were the petitioners in the above application. ## **Brief facts** 2. The respondents had filed the application under Sec.125 of the Code of Criminal Procedure (in short, 3 RP(FC) No.429 of 2016 ‘Code’), against the revision petitioner, contending that the first respondent is the divorced wife of the revision petitioner. The second respondent is the daughter born in their wedlock on 16.9.2010. Since 19.6.2014, the revision petitioner has refused to maintain the second respondent. The revision petitioner is employed in Gulf and earning a monthly income of Rs.75,000/-. The first respondent is remarried. The second respondent requires a monthly maintenance allowance @ Rs.7,500/-. Hence, the application. 3. Even though notice in the application was served on the revision petitioner, he failed to appear. Consequently, the revision petitioner was set ex parte. The first respondent, who was examined as PW1 filed the chief affidavit in lieu of chief examination. 4 RP(FC) No.429 of 2016 4. In view of the uncontroverted assertions in the application and the affidavit, the Family Court, by the impugned order, partly allowed the application by directing the revision petitioner to pay the second respondent monthly maintenance allowance @ Rs.3,000/-. 5. The records reveal that, subsequent to the passing of the impugned order, the revision petitioner had filed Crl.M.P No.256/2016 to set aside the ex parte order. As there was no representation for the revision petitioner, the Family Court dismissed the said application also on 11.5.2016, that too after noting that the revision petitioner had failed to pay interim maintenance allowance to the second respondent. These orders have not been challenged. 5 RP(FC) No.429 of 2016 6. It is aggrieved by the order; the present revision petition is filed. 7. Heard; Sri.Santhosh P.Poduval, the learned counsel appearing for the revision petitioner and Sri.A.Jayasankar, the learned counsel appearing for the respondents. 8. When the revision petition came up for admission, this Court admitted the revision petition and passed a conditional interim order directing the revision petitioner to pay the second respondent monthly maintenance allowance @ Rs.2,000/- till the disposal of the revision petition. 9. The learned counsel appearing for the respondents submitted that the revision petitioner has 6 RP(FC) No.429 of 2016 not complied with the interim order passed in the revision petition. 10. Is there or any illegality, impropriety irregularity in the impugned order ? 11. The revision petitioner does not dispute that the second respondent is his daughter born in his marriage with the first respondent. 12. Even though the revision petitioner received notice in the application, he did not contest the proceedings. Subsequently, he filed an application to set aside the ex parte order, which was also dismissed for want of representation and non-compliance of the interim maintenance order. 13. The respondents’ case is that the revision petitioner is employed in Gulf and is earning a monthly 7 RP(FC) No.429 of 2016 income of Rs.75,000/-. This assertion is not controverted by the revision petitioner. 14. On an evaluation of the sequence of events, I am of the definite view that there is wilful laches and deliberate negligence on the part of the revision petitioner in contesting the applications and failing to pay interim maintenance ordered by the Family Court and this Court. 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 dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 8 RP(FC) No.429 of 2016 16. 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 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. 17. After bestowing my anxious consideration to the pleadings and materials on record and the law rendered on the point, I do not find any illegality, 9 RP(FC) No.429 of 2016 impropriety or irregularity in the impugned order warranting interference by this Court under Sec.19(4) of the Family Courts Act, 1964. The maintenance allowance fixed by the Family Court is only reasonable and justifiable. 18. The revision petition is devoid of any merits and is hence, consequentially dismissed. The Registry is directed to forward a copy of this order to the Family Court for further proceedings. SD/- sks/10.11.2023 **C.S.DIAS, JUDGE** 10 RP(FC) No.429 of 2016 ## **APPENDIX** **PETITIONERS ANNEXURES** **A- TRUE COPY OF CMP 256/2016 IN MC 363/15 BEFORE THE FAMILY** **COURT, TIRUR** **B- TRUE COPY OF PROCEEDINGS IN DIARY EXTRACT IN MC 363/15 ON** **THE FILE OF THE FAMILY COURT, TIRUR** **C- CERTIFIED COPY DIARY EXTRACT IN CMP 256/16 IN MC 363/15** **BEFORE THE FAMILY COURT, TIRUR** **D-TRUE COPY OF ORDER DATED 11.5.16 IN CMP 256/16 IN MC 363/15** **BEFORE THE FAMILY COURT, TIRUR** **E- TRUE COPY OF AGREEMENT DATED 5.4.14 EXECUTED BETWEEN** **THE REVISION PETITIONER AND THE FIRST RESPONDENT**