Biju v. Adithya

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **RPFC.No.39 OF 2016** **AGAINST THE ORDER IN M.C.NO.55/2013 DATED 13-10-2015 OF FAMILY COURT, ERNAKULAM** ## **REVISION PETITIONER/RESPONDENT:** **BIJU, AGED 44 YEARS, S/O. BABU, KAMBIVELIKKAKATH HOUSE, BINANIPURAM KARA, KADUNGALLOOR VILLAGE, PARAVOOR TALUK, NOW RESIDING AT C/O.MAHESH, MAVINKOOTHATHIL HOUSE, EDAPALLY P.O, COCHIN** **BY ADV. SMT.R.LEELA** ## **RESPONDENT/PETITIONER:** **ADITHYA, AGED 12 YEARS, D/O. REMYA K.A, MINOR REP.BY HER MOTHER AND CUSTODIAN REMYA K.A, AGED 32 YEARS, D/O. ASOKAN, KADUVAPARAMBIL HOUSE, KARUMALLOOR KARA, KARUMALLOOR P.O 683 511** ## **BY ADV. SRI.T.M.RAMAN KARTHA** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02-07-2020, THE COURT ON 14-07-2020 PASSED THE FOLLOWING:** R.P(FC) No.39 of 2016 -:2:- ## O R D E R Dated this the 14[th] day of July, 2020 The revision on hand is filed against an order passed by Family Court, Ernakulam on 13.10.2015 in M.C.No.55 of 2013. The revision petitioner is the respondent before the Family Court in M.C.No.55 of 2013. M.C.No.55 of 2013 was filed under Section 127 of the Code of Criminal Procedure (for short 'the Cr.P.C.') seeking for modification of the order passed in M.C.No.351 of 2008 on 28.02.2009, granting Rs.500/- as monthly maintenance. 2. The parties to this revision are referred to hereinafter as the respondent and the petitioner in accordance with their status in the M.C on the files of the Family Court. 3. Smt.Leela. R, the learned counsel for the respondent has contended that the amount of maintenance originally awarded was enhanced to Rs.4,000/- payable monthly without adverting to the respondent's financial capacity to pay the same. According to her, at the time when R.P(FC) No.39 of 2016 -:3:- the present M.C was filed seeking modification, the child was studying only in 5[th] standard. The minor girl, in favour of whom, maintenance was awarded was in the custody of her grand parents, who are financially well. The mother of the minor girl was re-married and staying away with her husband. 4. The respondent has adduced oral evidence as RW1. He has denied the averment of the petitioner that he was employed as a contract worker in Aluminium fabrication. He has tendered oral evidence to the effect that he was working as a steel buffer in M.M Metals and was getting Rs.10,000/monthly. The salary certificate, certifying his salary as Rs.11,000/- issued from M.M metals is also produced and marked in evidence as Ext.B4. According to the learned counsel, the respondent being a man re-married and has his second wife, child and aged parents to be looked after is unable to pay any sum over and above Rs.500/- as maintenance to the minor child. He seeks to set aside the impugned order under challenge for the reasons stated above. The amount at the most payable is agreed by him as Rs.1,000/- monthly. R.P(FC) No.39 of 2016 -:4:- 5. On the contrary, Sri. T.M Raman Kartha, the learned counsel for the petitioner has contended that the Family Court is perfectly justified in enhancing the monthly maintenance to Rs.4,000/- from Rs.5,00/- originally awarded. According to him, the mother of the minor child was re married and is staying away from her with her husband and child in the second marriage. According to him, the mother is unemployed. Admittedly, the minor child is in the custody of her grand parents. The grand father is a retired government employee and is also blind. A shop is being run by the grand mother and income is derived for their livelihood. 6. It is contended by the learned counsel for the petitioner that the fact that the grand parents are having sufficient income is not a ground to absolve the respondent, being the father from paying a reasonable sum for maintenance of the child. Accordingly, he pleads for confirming the impugned order. 7. Family Court evaluated the claim for hike in the maintenance amount on the basis of the oral evidence tendered by the petitioner and respondent, respectively as ## R.P(FC) No.39 of 2016 -:5:- PW1 and RW1 and documentary evidence adduced by the petitioner and respondent respectively as Exts.A1 & A2 and Exts.B1 to B4 and found the petitioner entitled to get an enhanced sum and accordingly, ordered Rs.4,000/- in the place of Rs.500/- as maintenance amount payable monthly from the date of the petition. The respondent was directed to pay the arrears of maintenance within two months to the mother, on behalf of the child. 8. Aggrieved by the above order, the respondent is now in revision contending that even when the order directing to pay Rs.500/- as monthly maintenance was in prevalence, the respondent had never defaulted the payment and even go to the extent of paying Rs.1,000/- monthly and that is well evidenced from the money order receipts produced as Exts.B1 to B3. The direction of this Court while granting an interim stay in the revision petition on hand to pay 50% of the arrears of maintenance was also complied with without failure. The learned counsel canvassed for showing a lenient approach in the matter of fixation of monthly maintenance. R.P(FC) No.39 of 2016 -:6:- 9. According to the learned counsel, the petitioner failed to prove the job and monthly income of the respondent. According to her when the respondent had taken a stand that he was not a contract worker but only a steel buffer at M.M.Metals and Ext.B4 is produced to show that he was getting only Rs.10,000/- monthly, the Family Court ought to have relied on that evidence to decline the claim of the petitioner for enhancement of the maintenance amount. According to her, it was established by the respondent through oral evidence tendered as RW1 that the mother is re-married and the child is now in the custody of her grand parents who are financially sound and that the respondent is having his wife and the child born in his second marriage and aged and ailed parents to be taken care of, ought to have been taken note of by the Family Court as reasons that stand in the way of the amount of maintenance, being enhanced. According to her, the Family Court must be keen to see that the respondent who will have to pay the enhanced sum of maintenance ordered will be able to pay it. The learned counsel has also cautioned the court by submitting that the enhanced sum of maintenance if not R.P(FC) No.39 of 2016 -:7:- interfered with and is allowed to be maintained, the respondent, on account of the deficient income earned by him, will not be able to pay it. The learned counsel has conceded by stating that the respondent is prepared to pay at the most Rs.2,500/- as monthly maintenance and he would not be prejudiced, if a direction to pay the same as the modified sum is issued in the revision on hand. 10. The learned counsel for the respondent has also urged on the basis of the proceedings paper before the Family Court, produced alongwith the revision on hand that, the petitioner by her own laches had contributed much for the delay in disposal of the M.C on hand and the Family Court is highly unjustified in not adverting to those while issuing directions to pay maintenance at the enhanced rate with effect from the date of the M.C. 11. The learned counsel has also invited this Court's attention to the impugned order wherein the Family Court has directed the respondent to pay the modified sum as monthly maintenance from the date of the petition. The learned counsel has taken the direction as one meant to be complied with from the date of M.C.No.351 of 2008. She has R.P(FC) No.39 of 2016 -:8:- urged to substitute the date from which the enhanced sum is payable with the date on which the impugned order was passed in the M.C on hand. 12. **Jaiminiben Hirenbhai Vyas v. Hirenbhai Rameshchandra Vyas [2015 (1) KLT SN 19 (C.No.25) SC]** was also relied on by the learned counsel, to fortify her argument. The dictum in the case reads: “Every final order under S.125 of the Cr.P.C.[and other sections referred to in sub-section (c) of S.354] must contain points for determination, the decision thereon and the reasons for such decision. In other words, S.125 and S.354(6) must be read together. S.125 of the Cr.P.C., therefore, impliedly requires the Court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the Court may choose either date. It is neither appropriate nor desirable that a Court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance.” 13. On the contrary, Sri.Raman Kartha, the learned counsel for the petitioner had contended that the factum that the grand parents of the minor are financially sound to meet her requirements and that the respondent has his wife and child in the second marriage and the aged parents who are suffering from ailments, to be maintained with his income will R.P(FC) No.39 of 2016 -:9:- not absolve him from his obligation as father of the child to maintain her in accordance with his status of living. According to him, Ext.B4, issued by a lady certifying that the respondent was a steel buffer at M.M.Metals and was given Rs.11,000/- as monthly salary, having not been proved as issued by an authentic person, the Family Court has rightly discarded it. According to him in a context when cogent materials to establish the monthly income were not produced and marked in evidence, the Family Court was constrained to take a view that the respondent had income more than Rs.10,000/- admitted by him and accordingly to order an enhanced sum of Rs.4,000/- to be paid to the child. 14. The learned counsel has also relied on **Shamima Farooqui vs. Shahid Khan [AIR 2015 SC 2025]** to repel the contention of the learned counsel for the respondent that he cannot be burdened to pay the monthly maintenance at the modified rate for the period for which the M.C was pending consideration of the court due to sole failure of the petitioner herself to co-operate with the court for an early disposal. The Apex court had dealt elaborately with the delay R.P(FC) No.39 of 2016 -:10:- ## occurred in the proceedings before the Family Court and ## observed: “14. xxxxxx The Family Judge is expected to be sensitive to the issues, for he is dealing with extremely delicate and sensitive issues pertaining to the marriage and issues ancillary thereto. When we say this, we do not mean that the Family Courts should show undue haste or impatience, but there is a distinction between impatience and to be wisely anxious and conscious about dealing with a situation. A Family Court Judge should remember that the procrastination is the greatest assassin of the lis before it. It not only gives rise to more family problems but also gradually builds unthinkable and Everestine bitterness. xxxx” The Apex court held in the context that when application for grant of maintenance was filed by wife, the delay in disposal of application, to say least, was unacceptable situation. 15. **Shamima Farooqui** supra has also been relied on by the learned counsel to rest his contention that the wife who was the applicant for modification of the sum ordered as maintenance is entitled to live a life in the same status as she had lived in the house of her husband and that obligation of husband is on higher pedestal when question of R.P(FC) No.39 of 2016 -:11:- maintenance of wife and children arose. It was also held by the Apex Court in that case that the retirement of the husband from his employment is not a justifiable reason to reduce the sum that stands ordered as maintenance. The Apex court thus reversed the judgment of the High Court modifying the sum. 16. The learned counsel for the petitioner has also contended that like the lady in the decision cited by him, the minor child in the case on hand is also entitled to lead a life in the same status as she could be, had she been living with her father. According to him, Rs.500/- per month was ordered as maintenance originally in the year 2009 and the modification being sought after four years in the year 2013, a sum of Rs.4,000/- ordered as maintenance cannot be said to be a sum unjust and unreasonable, calling for interference. 17. It is true that the petitioner failed to establish that the respondent was a contract worker in Aluminium fabrication and was earning Rs.30,000/- monthly. The respondent has denied the above plea of the petitioner and contended that he was only a steel buffer at M.M.Metals, Edapally and was getting only Rs.10,000/- monthly. He also R.P(FC) No.39 of 2016 -:12:- attempted to prove his plea by relying on Ext.B4 marked in evidence by him. But, he has not taken effort to examine the lady who has signed it. Opportunity to test the authenticity of the document was thus denied to the petitioner. 18. Yet another reason making Ext.B4 unreliable is the sum certified therein by its signatory as Rs.11,000/- which is a sum totally different from the claim of the respondent that he was getting only Rs.10,000/- monthly from M.M.Metals. It is for the respondent to produce materials to establish his job and income, especially when admissions with reference to those are made. The respondent having taken a plea that he was employed at M.M.Metals as a steel buffer and was getting Rs.10,000/- monthly as salary, he must be vigilant to produce materials which are in his custody or for obtaining which, he has better access than the opposite party. In the case on hand, an attempt was made to do so, but it turned a futile exercise. Therefore, an inference probable to draw is that the respondent has income more than that claimed as earned by him. 19. As rightly held by the Apex Court in **Shamima Farooqui** supra cited by the learned counsel, the minor child R.P(FC) No.39 of 2016 -:13:- is entitled to get a sum as maintenance to suit the status of her father. The paternity having been admitted by the respondent, he cannot evade from his obligation to maintain the child reasonably in tune with his status in the Society. As rightly observed by the Family Court, the respondent is not proved as a man having ailments or bad health restraining him from doing work. If he has only deficient income, he would not have re-married. The claim of the respondent that with the monthly income of Rs.10,000/- he is maintaining a family which admittedly consists of the wife and the child in the second marriage, himself and his aged parents can only be swallowed with a pinch of salt. These aspects tend to doubt his claim that he was having only Rs.10,000/- as monthly income. He undoubtedly has sufficient income and is suppressing the materials evidencing the factum for the reason. Moreover, as rightly observed by the Family Court, having been proven as a healthy man without any ailments to restrain his earning capacity, he must find means to reasonably maintain the child born in his blood. The child is also entitled to be maintained reasonably. Rs.4,000/- being awarded after a lapse of four and odd years, to any stretch of R.P(FC) No.39 of 2016 -:14:- imagination, is not exorbitant or unreasonable. 20. Sub-Section (2) of Section 125 Cr.P.C reads: ## “ **125. Order for maintenance of wives, children and** ## **parents** ## (1) xxxxx - (2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.” As envisaged by the above provision, unless directed by order of the court to pay maintenance from the date of the petition, the maintenance shall be paid from the date of the order. If the order is silent, maintenance shall be paid from the date of the order. If maintenance is meant to be paid from the date of the petition, a specific direction to the effect must be incorporated in the order. It is pertinent to note from the impugned order that the Family Court has directed the enhanced maintenance to be paid from the date of the petition claiming modification of maintenance, i.e. M.C. No.55 of 2013. The Family Court is R.P(FC) No.39 of 2016 -:15:- perfectly justified in doing so. Therefore, interference is absolutely uncalled for. The revision petition stands dismissed. Sd/- **MARY JOSEPH JUDGE** NAB R.P(FC) No.39 of 2016 -:16:- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TYPED COPY OF THE B-DIARY PROCEEDINGS IN M.C.NO.55/2013 ON THE FILES OF THE FAMILY COURT, ERNAKUALAM** **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **P A TO JUDGE**