Asharaf K.H. v. Kenz A. Nahia

# ``IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 498 OF 2023 ``` ``` AGAINST THE ORDER DATED 01.08.2023 IN MC 339/2016 OF FAMILY COURT,ERNAKULAM ``` ## `REVISION PETITIONER/RESPONDENT:` ``` ASHARAF K.H, AGED 58 YEARS, S/O K.P. HASSAINAR, KIZHAKKEKARA, NAHIA HOUSE, EDAPPALLY NORTH P.O., VATTEKKUNNAM, COCHIN, PIN – 682024 ``` ``` BY ADVS.M.S.UNNIKRISHNAN ALEENA MARIA JOSE M.ARDRA KRISHNAN FIDA P. DIYA MERIN BIJU ``` ## `RESPONDENT/2ND RESPONDENT:` ``` KENZ A. NAHIA, AGED 19 YEARS, S/O ASHRAF K.H., MULLAPPILLLY HOUSE, NEDUMTHODE, MUDICKAL P.O., PERUMBAVOOR, PIN – 683547 ``` ``` THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.498/2023 -:2:- Dated this the 29[th] day of November,2023 ## **O R D E R** The revision petition is filed under Section 19(4) of the Family Courts Act, 1984, calling in question the propriety, legality and correctness of the order in M.C.No.339/2016 of the Family Court, Ernakulam, ordering the revision petitioner to pay the respondent – his son – monthly maintenance allowance @ Rs.7,000/from the date of application (22.09.2016) till the date the respondent attained majority(22.06.2022). The revision petitioner was the respondent and the respondent was the second respondent before the Family Court. ## **Brief facts:** 2. The respondent and his mother had filed the above application under Section 125 of the Code of Criminal Procedure,1973, claiming monthly R.P.(FC)No.498/2023 -:3:- maintenance allowance from the revision petitioner @ Rs.25,000/- & Rs.20,000, respectively. It was their case that the mother of the respondent was the wife of the revision petitioner and the respondent was born in their wedlock. Although the revision petitioner was a Lawyer by profession and earning Rs.1,50,000/- per month, he refused to maintain the respondent and his mother. Hence, the application. 3. The revision petitioner filed a written objection refuting the allegations in the application. He contended that, even though he had enrolled as an Advocate, due to mental stress and cardiac disease, he left the profession. He has undergone angioplasty in the year 2017. Thereafter, he is living on a meager rental income of Rs.17,500/- per month. The respondent’s mother is well employed in the All India Radio. She has more income than the revision petitioner. The respondent has attained majority on R.P.(FC)No.498/2023 -:4:- 22.06.2022 and, therefore, the revision petitioner is not liable to maintain him. As per the orders of this Court in O.P.(Crl)No.638/2016, the revision petitioner had paid an amount of Rs.1,00,000/- towards arrears of interim maintenance to the respondent. 4. In the trial, the respondent’s mother was examined as PW1 and Exts A1 to A3 were marked in evidence. The revision petitioner was examined as RW1 and Exts B1 to B4 were marked through 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 petitioner to pay the respondent/second petitioner monthly maintenance allowance @ Rs.7,000/- as observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri. M.S. Unnikrishnan, the learned R.P.(FC)No.498/2023 -:5:- counsel appearing for the revision petitioner on admission. 8. Is there any illegality, impropriety or irregularity in the impugned order, warranting admission of the revision petition ? 9. The learned counsel appearing for the revision petitioner vehemently argued that the Family Court has failed to take note of the illness of the revision petitioner, who is a heart patient. Furthermore, the quantum of maintenance ordered by the Family Court is excessive and exorbitant. Hence, the order warrants interference by this Court. 10. The revision petitioner had admitted the paternity of the respondent. Although the respondent had contended that the revision petitioner is earning a monthly income of Rs.1,50,000/- from his practice as a Lawyer, the revision petitioner refuted the said allegation and contended that he was only earning a R.P.(FC)No.498/2023 -:6:- rental income of Rs.17,500/- per month. 11. At the stage of trial, the revision petitioner produced Ext B2 income tax return, which showed that he has an income of Rs.2,42,150/-. In the affidavit of disclosure filed by him, following the principles laid down in **Rajnesh v. Neha and Anr.** [2020 (6) KHC 1], the revision petitioner had admitted that he inherited 16.39 Ares of land situated in Thrikkakara North Village and that he was having a rental income of Rs.27,000/- per month. 12. On an appreciation of Ext B3 TDS statement, the Family Court found that the revision petitioner had a total credit of Rs.3,45,600/- and Rs.34,560/- was deducted towards TDS. Accordingly, the Family Court found that the income stated by the revision petitioner in the written objection and his affidavit of disclosure of assets and liabilities were contradictory. It was also found that the revision petitioner had not stopped his R.P.(FC)No.498/2023 -:7:- practice and he had contracted a second marriage, and has a child in the said relationship. 13. It is after an appreciation of the above materials, the Family Court concluded that the revision petitioner has the means to maintain the respondent @ Rs.7,000/- per month for the period from 22.09.2016 to 22.06.2022. 14. In the celebrated decision in **Rajnesh** (supra), 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, so as to prevent them from falling into destitution and vagrancy. 15.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 R.P.(FC)No.498/2023 -:8:- 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. 16. 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. 17. After bestowing my anxious consideration to the materials on record and the elaborate finding of the Family Court in the impugned order, I do not find any valid grounds to admit the revision petition. The revision petition sans merit or substance and is only to R.P.(FC)No.498/2023 -:9:- be dismissed at the threshold. Resultantly, the revision petition is dismissed in limine. Sd/- ## **C.S.DIAS,JUDGE** DST/29.11.23 //True copy// P.A. To Judge