Beena T.A & Basil Eldhose (minor) v. Shibu T.A

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933** ## **RPFC.No. 188 of 2011()** **--------------------MC.298/2008 OF FAMILY COURT, ERNAKULAM ................** ## **REVISION PETITIONER / PETITIONER'S :** **------------------------------------------------------------** **1. BEENA T.A, AGED 34 YEARS, D/O.ELIAS T.V, THAZHATHUVEETTIL, POIKKATTUSSERY,CHENGAMANAD P.O, ERNAKULAM DISTRICT.** **2. BASIL ELDHOSE (MINOR), S/O.BEENA AND SHIBU, THAZHETHUVEETTIL, POIKATTUSSERY, CHENGAMANADU POST, ALUVA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.P.BHASKARAN SRI.V.K.NANDAKUMARAN SRI.P.S.HARIHARAN** **RESPONDENT / RESPONDENT :** **---------------------------------------------** **SHIBU T.A, AGED 35 YEARS, S/O.ALIAS, THOMMANKUDIYIL HOUSE, MURIVILANGU P.O, OORAKKADU, KIZHAKKAMBALAM, ERNAKULAM-682 005.** **BY** **THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19/10/2011, ALONG WITH RPFC NO. 192 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **S.S.SATHEESACHANDRAN, J** ## **-------------------------------------R.P(FC) Nos.188 OF 2011 AND 192 OF 2011 ----------------------------------------Dated this the 19[th] day of October 2011** ## **ORDER** These two revisions arise from M.C No.298/2008, a proceeding under Section 125 of the Code of Criminal Procedure, for short, 'the Code'. The order passed in the above proceedings awarding maintenance at the rate of `.1,000/- each per month to the claimants, who are admittedly the wife and child of the opposite party in the proceedings, is challenged by both sides, with the claimant questioning the maintenance awarded as inadequate and the opposite party impeaching the granting of maintenance itself contending that the wife in the given facts of the case was not entitled to any maintenance, living separately from him. The wife and child have filed R.P(F.C) No.188/2011 and the opposite party, the husband, the other R.P(F.C) No.192/2011 against the order of the Family Court as indicated above. 2. Status of the parties is not in dispute. The wife and child have been living separately from the opposite party, husband, after she was taken to her family home while she was carrying the second petitioner is also not disputed in the case. Whereas, the wife contended that continued cohabitation with the husband was not possible on account of the cruelty and torture inflicted on her the claims raised by her and also the child for maintenance were resisted by the husband/father R.P(FC) Nos.188/2011 & 192/2011 - 2 - contending that there is improper refusal on her part to reside with him despite an offer made to the wife to cohabitate with him with the child. On the materials placed, which consisted of only the oral evidence of the parties, the wife examined as PW1 and the husband as CW1 the learned Judge, Family Court found that the wife has reasonable and justifiable cause to live separately from the husband and seek maintenance from him. Objection raised by the husband that living separately she is not entitled to seek maintenance from him was turned down by the court below having regard to the facts and circumstances presented in the case. Two questions emerge for consideration on the challenges raised over the order passed by the court below in the light of the revisions moved by the rival parties. The first and foremost question to be looked into is whether there is any merit in the challenge raised by the husband that the wife is not entitled to claim maintenance from him living separately. Though in the revision moved by him, R.P. (F.C) No.192/2011, the order of the court below as such is assailed including the awarding of maintenance to the child, at the time of hearing, the learned counsel for the husband/father rightly and correctly refrained from assailing that part of the order of the court below awarding maintenance to the child. So far as the child, second petitioner, is concerned, on the facts presented in the case, the R.P(FC) Nos.188/2011 & 192/2011 - 3 - statutory liability of the father to provide maintenance to him can never be disputed. The second question then is whether the maintenance awarded to the child as payable from his father is adequate. That question, no doubt, has to be considered with reference to the challenge raised as regards the inadequacy of the sum awarded to the wife also, as projected in the revision jointly filed by them. 3. The husband has made an offer in his objections that he is prepared to take back the wife, provided, she is willing to come to his home and discharge her marital duties. The learned counsel for husband adverting to the filing of a petition by the wife for the restitution of conjugal rights contended that when an offer was made in the objections thereto, that proceeding was not continued. It is the case of the husband that, the wife suffered from Psychosis and for such ailments she underwent continuous medical treatment. Though he would claim that such ailments suffered by her arose consequent to the delivery of the second petitioner and the expenses thereof were met by him, not a scrap of paper was produced to show that leave alone the expenses for her treatment he has provided any maintenance to the wife and child after the delivery of the second petitioner. The learned Judge, Family Court, who had the opportunity to record the evidence of the wife and also the husband found credence in her testimony as to R.P(FC) Nos.188/2011 & 192/2011 - 4 - the illtreatment met out by her husband, as a justifiable ground entitling her to live separately from the husband and seek maintenance from him. 4. The mere fact that the husband has made an offer or that a petition for restitution of conjugal rights moved by the wife was not prosecuted by her, are not themselves material in considering the claim for maintenance made by the wife. Even if necessary particulars as regards the grounds entitling the wife to live separately and claim maintenance are not spelt out in her petition, any objection to her claim by the husband referrable to his offer to maintain her, necessarily has to be examined with regard to the laudable objectives covered by the provision under Section 125 of the Code. It is intended to provide succour to neglected wife, children and parents, and, to avoid vagrancy. It is not the lack of pleadings or, even absence of positive evidence to establish the ground for separate living that is crucial, but, an answer in the totality of the facts and circumstances presented in the case as to whether the wife has justifiable cause to live separately if at all an offer has been made by the husband. This court, in “A.S.N. Nair v Sulochana” (1981 KLT 568), analysing the question as to the burden cast upon the wife in showing sufficient reason for refusal to cohabitate with the husband even when an offer is made has observed thus: R.P(FC) Nos.188/2011 & 192/2011 - 5 - “While it is true that burden of proving refusal to live with the husband rests on the husband and the burden of proving sufficient reason rests on the wife, when both sides adduce evidence and marshall circumstances before the court, the matter has to be decided on an appreciation of evidence and the circumstances and not merely on the basis of burden of proof. Considering the high legislative purpose behind the provisions in S.125 of the Code, even where the wife, on account of her lack of experience or other reasons, does not plead specific grounds or reasons for refusing to go back to her husband or does not adduce specific evidence in that regard, it is the duty of the court to examine the circumstances available in the case and see if these circumstances are or are not sufficient to justify the wife's refusal to husband's offer.” In the facts of the present case, it is evident, ever since the separation of the parties though the husband would claim of providing maintenance to his wife and child, nothing was produced before the court even to draw an inference that after the separation he cared for the wife and child, leave alone extending them any monetary reliefs. When that be the case, the offer that was made by him that he is ready and willing to maintain the petitioners if the wife is prepared to reside with him, was rightly and correctly found by the court below as not worthy of acceptance. I do not find any infirmity in the conclusion formed by the court below that she has made out sufficient ground to live separately from the husband and claim maintenance. R.P(FC) Nos.188/2011 & 192/2011 - 6 - 5. The learned counsel for the wife would also submit that the husband has filed a petition for dissolution of marriage and it is now pending consideration before the Family Court. The counsel for the husband would state that such petition has been filed on the ground of desertion. Even if that be so, when an offer is made to resist the claim of the wife, if it is bonafide, necessarily, he is expected to take steps for reunion with his wife, if there is refusal on her part, by taking appropriate legal proceedings. The offer, which is made to resist the claim for maintenance is shown to be without bonafide is evident from the fact that what he desired was only a dissolution of the matrimonial relationship, whatever be the ground canvassed thereof. When that be so, I find that the wife in the given facts of the case was fully justified to claim maintenance from her husband living separately from him. 6. So far as the quantum of maintenance awarded by the Family Court, it is the admitted case that the husband is employed in Government service. Though it was argued before me by the learned counsel for the husband that he is employed as a last grade servant in the Dairy Development Department, it is seen that no material was produced as to the cadre in which he is working or the emoluments that he is getting from such employment. The wife alleged that he is getting a sum of `.10,000/- per month. In his counter that was denied, but, R.P(FC) Nos.188/2011 & 192/2011 - 7 - without furnishing any particulars as to his post or the emoluments obtained in such post. The wife has contended that the husband is an Upper Division Clerk in the above department. It is just and reasonable to hold that after the last pay revision, the husband, who has already put in considerable service, in all probabilities, is getting much more than `.10,000/- every month as salary. Though he contended that he has to look after his aged parents, both of whom are stated to be suffering from several ailments, that would not absolve him from his liability to maintain his wife and child. So far as the claim for maintenance made by the child, it is stated that he is now aged eight years and studying in a school. A growing child's needs increase and it will never be static. Still, in the absence of better particulars, for the time being, so far as the claim of maintenance awarded to the child, fixed at the rate of `.1,000/- per month, I find, no interference is called for. But, as regards the wife, the amount of maintenance awarded by the Family Court fixed at the rate of `.1,000/- per month provides her only just twelve rupees a day. Where it could be reasonably inferred that her husband employed in Government service is getting more than `.10,000/- as monthly emoluments her claim for `.1,500/- as canvassed in her petition deserves to be allowed. So much so, having regard to the needs and necessities of the wife, the claim of maintenance R.P(FC) Nos.188/2011 & 192/2011 - 8 - awarded to her is enhanced to `.1,500/- per month, but, she will be entitled to have such enhancement as awarded by this court only from the date of this order. 7. R.P(F.C) No.188/2011 is partly allowed, awarding enhancement of maintenance to the wife at the rate of `.1,500/- per month from the date of the order. R.P(F.C) No.192/2011 shall stand dismissed. vdv Sd/- **S.S.SATHEESACHANDRAN, JUDGE** //True Copy// P.A to Judge