Binukumar.J v Linshimol and Athulya L.B.

1 RP(FC) No.249 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 RPFC NO. 249 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT MC 490/2015 OF FAMILY COURT, ``` ``` NEDUMANGAD ``` ## **`REVISION PETITIONER/S:`** ``` BINUKUMAR.J AGED 39 YEARS, S/O.JOSEPH, PADAPPARATHALAKKAL MELE PUTHEN VEEDU, KURUTHAMCODE P.O., KULATHUMMAL VILLAGE. BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SMT.M.BINDUDAS SRI.R.T.PRADEEP ``` ## **`RESPONDENT/S:`** ``` 1LINSHIMOL AGED 25 YEARS, D/O.VIJAYAKUMARI, LINSHI BHAVAN, ALAMOCE, KAVINPURAM, PULIYARAKKONAM P.O., VALAPPIL VILLAGE, PIN-695 573. 2ATHULYA L.B. D/O.LINSHIMOL, LINSHI BHAVAN, ALAMOCE, KAVINPURAM, PULIYARAKKONAM P.O., VALAPPIL VILLAGE, PIN-695 573.REPRESENTED BY 1ST RESPONDENT MOTHER THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RP(FC) No.249 of 2016 ## **C.S DIAS,J.** **--------------------------RP(FC) No.249 of 2016 ----------------------------Dated this the 9[th] day of November, 2023** ## **ORDER** The revision petition is filed assailing the order in M.C No.490/2015 of the Family Court, Nedumangad, directing the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.7,000/and Rs.2,000/-, respectively, from the date of petition (14.12.2015). The revision petitioner was the respondent and the respondents were the petitioners in the above application. 3 RP(FC) No.249 of 2016 ## **Brief facts** 2. The respondents had filed the application under Sec.125 of the Code of Criminal Procedure (in short, ‘Code’), against the revision petitioner, seeking monthly maintenance allowance @ Rs.8,000/- and Rs.4,000/-, respectively. It was their case that the first respondent was married to the revision petitioner and the second respondent was born in the wedlock on 22.4.2011. The revision petitioner deserted the respondents from 22.4.2015. The respondents do not have any means to maintain themselves. Although the revision petitioner is a Mason by profession and earning a monthly income of Rs.25,000/-, he has wilfully refused to maintain the respondents. Hence, the application. 4 RP(FC) No.249 of 2016 3. The revision petitioner contested the application by filing a written objection, admitting the marriage as well as the paternity of the second respondent. His defence was that the first respondent was living in adultery. It is the first respondent who deserted the revision petitioner. The first respondent is employed and has agricultural income. The revision petitioner is suffering from various ailments and he is incapacitated to do normal work. The quantum of maintenance claimed is excessive. Hence, the application may be dismissed. 4. The first respondent and the revision petitioner were examined as PW1 and CPW1, respectively. 5 RP(FC) No.249 of 2016 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 monthly maintenance allowance to the respondents @ Rs.7,000/- and Rs.2,000/-, respectively. 6. Confronted with the said order; the present revision petition is filed. 7. Heard; Sri.R.T Pradeep, the learned counsel appearing for the revision petitioner. Even though service of notice is complete on the respondents, there is no appearance for them. 8. Is there or any illegality, impropriety irregularity in the impugned order ? 6 RP(FC) No.249 of 2016 9. The revision petitioner admits his marriage with the first respondent and the paternity of the second respondent. The respondents had filed the application alleging that the revision petitioner deserted them from 22.4.2015 and despite having sufficient means, he has wilfully refused to maintain the respondents. The respondents are unable to maintain themselves. It is the revision petitioner’s defence that the first respondent is living in adultery and she has sufficient means to maintain herself. The revision petitioner is suffering from various ailments and is incapacitated to do any work. 10. Sec.125 (4) of the Code disentitles a wife from receiving maintenance if she is ‘living in adultery’. 7 RP(FC) No.249 of 2016 11. Interpreting Sec.125(4) of the Code, this Court in **Sheela and another vs. Albert Hemson Alias James** [2016 KHC 136] after relying on a host of decisions has held that ‘living in adultery’ means a continuous course of adulterous life as distinguished from one or two lapses from virtue. Living in adultery is wider than mere living as a ‘concubine’ or kept as a ‘mistress’. The word ‘is living’ cannot mean ‘was living’. 12. It is also well-settled that, the Courts should be slow in branding a woman as unchaste. A mere suspicion alone is insufficient to conclude that a woman ‘is living in adultery’. 8 RP(FC) No.249 of 2016 13. In the case on hand, admittedly, the revision petitioner has in unequivocal terms testified that he has not seen the first respondent indulging in an act of adultery, leave alone ‘living in adultery’. 14. The revision petitioner also has not instituted any proceeding to dissolve his marriage with the first respondent on the ground that she has committed adultery. It is only a bare assertion in the written objection and his interested oral testimony that the revision petitioner wants to impeach the first respondent as an unchaste lady and disentitle her from claiming maintenance. The said course is insufficient to conclude that the first respondent ‘is living in adultery’, so as to disentitle her to maintenance as per the 9 RP(FC) No.249 of 2016 exception under Sec.125(4) of the Code. Therefore, I confirm the finding of the Family Court that the revision petitioner’s defence is unsustainable in law. 15. Now coming to the question of quantum of maintenance awarded by the Family Court. 16. The respondents’ case was that the revision petitioner is a Mason and earning a monthly income of Rs.25,000/- and they require Rs.12,000/- as monthly maintenance allowance. The revision petitioner’s defence was that the first respondent is employed and has agricultural income and that he is suffering from ailments and is incapable of doing any work. 17. In the celebrated decision in **Rajnesh v. Neha and Anr.** [2020 (6) KHC 1], the Hon'ble Supreme Court 10 RP(FC) No.249 of 2016 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. 18. 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. 19. In **Bhuwan Mohan Singh v. Meena & Ors.** [(2015) 6 SCC 353], the Hon'ble Supreme Court has 11 RP(FC) No.249 of 2016 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. 20. It is well-settled in a catena of precedents that, an able bodied person is legally bound to maintain his wife and children and that the Courts are permitted to do some guesswork in fixing the quantum of maintenance. 12 RP(FC) No.249 of 2016 21. Again, other than for the bare assertion in the written objection and the revision petitioner’s solitary interested testimony, there is not even a piece of material to prove that the first respondent has any means to maintain herself. The revision petitioner has also not produced any material to establish that he is incapacitated. 22. In the above conspectus, it is only to be inferred that the revision petitioner is an able-bodied person. Therefore, the direction in the impugned order that the revision petitioner is to pay the respondents monthly maintenance @ Rs.7,000/- and Rs.2,000/-, is only reasonable and justifiable. 13 RP(FC) No.249 of 2016 23. 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, impropriety or irregularity in the impugned order warranting interference by this Court under Sec.19(4) of the Family Courts Act, 1964. 24. The revision petition is devoid of any merits and is hence, consequentially dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim order of this Court, he would be entitled to adjust the deposited amount, while paying the arrears of maintenance as per the impugned order. 14 RP(FC) No.249 of 2016 The Registry is directed to forward a copy of the order to the Family Court for further proceedings. sd/- sks/9.11.2023 **C.S.DIAS, JUDGE**