C. Suresh v. K.M. Lisha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941** ## **RPFC.No.17 OF 2015** **AGAINST THE ORDER DATED 31-10-2014 IN MC 175/2012 OF FAMILY COURT, PALAKKAD** ## **REVISION PETITIONER/COUNTER PETITIONER:** **C. SURESH AGED 40 YEARS, S/O.LATE SUBRAMANIAN, KRISHNAKRIPA, 15/648, VALLIKKODE P.O., MUTTIKULANGARA, PALAKKAD TALUK AND DISTRICT.** ## **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENTS/RESPONDENTS:** **1 K.M.LISHA AGED 35 YEARS W/O C.SURESH, NANDANAM, VENNAKKARA, THIRUNELLAI P.O., PALAKKAD TALUK AND DISTRICT. 2 DAKSH AGED 5 YEARS (MINOR), S/O C.SURESH, NANDANAM, VENNAKKARA, THIRUNELLAI P.O., PALAKKAD TALUK AND DISTRICT. (SECOND RESPONDENT IS A MINOR REPRESENTED BY THE FIRST RESPONDENT.)** **R1 BY ADV. SRI.NIREESH MATHEW** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14-02-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 R.P.(F.C.) No.17/2015 ## **O R D E R** The revision petitioner was the respondent in M.C.No.175 of 2012 on the file of the Family Court, Palakkad. The respondents in this revision petition [in short 'R.P.(F.C.)'] were the petitioners in the Maintenance Case (in short 'M.C.'). 2. The respondents had filed the M.C., _inter alia,_ pleading as follows: The respondents are the wife and child of the revision petitioner. The marriage between the revision petitioner and the first respondent was solemnised on 30.8.2007. After the couple started cohabitation, the revision petitioner's mother demanded more dowry from her. One year after the marriage, the behaviour and character of the revision petitioner changed. The revision petitioner failed to give the first respondent proper treatment while she was pregnant. In the above compelling circumstances, the first respondent was compelled to obtain property from her father including 3 R.P.(F.C.) No.17/2015 a house, in favour of the revision petitioner. She went to her parental home for delivery. Thereafter, the revision petitioner threatened to divorce her. After she returned to the house of the revision petitioner, he assaulted her on 11.7.2009. Due to apprehension for her life, she fled from her matrimonial home to her parental home. The revision petitioner is working as a supervisor in a private company, namely, Patsin at Kanhangad and is drawing a monthly salary of Rs.20,000/-. The respondents require an amount of Rs.6,000/- and Rs.4,000/- respectively for their monthly allowance. 3. The M.C. was resisted by the revision petitioner. He filed a written objection, inter alia, contending as follows: He admitted the marriage as well as the paternity of the child. He denied the allegations of misappropriation as well as treating the first respondent with cruelty. According to him, he maintained the first respondent properly and he met to all the expenses for confinement of the second respondent. According to him, he is not 4 R.P.(F.C.) No.17/2015 drawing a salary of Rs.20,000/- per mensem as alleged by the respondent. The first respondent demanded a separate residence which was not acceded to by the revision petitioner. Accordingly, she left the matrimonial home on her own accord without any sufficient reason or cause. The M.C. is filed only to harass the revision petitioner. The first respondent is not entitled for maintenance. The M.C. as against her may be dismissed. 4. The first respondent and her witnesses were examined as PW1 and PW2 and Exts.P1 to P3 were marked. The revision petitioner was examined as RW1 and Ext.D1 was marked through him. 5. The Family Court, after considering the pleadings and evidence on record, by the impugned order allowed the M.C. in part by directing the revision petitioner to pay the respondents monthly maintenance allowance at the rate of Rs.3,000/- and Rs.2,000/- respectively from the date of petition i.e., from 4.5.2012. 6. It is assailing the above order that this R.P.(F.C.) 5 R.P.(F.C.) No.17/2015 is filed. 7. Heard Sri.Winston, representing Sri.Jacob Sebastian, the learned counsel for the revision petitioner and Sri.Prajeesh.M.P., representing Sri.Nireesh Mathew, the learned counsel for the respondents. 8. The learned counsel for the revision petitioner argued that the Family Court has committed a mistake by awarding maintenance from the date of petition without assigning any reason in the order. He relied on the decision of the Honourable Supreme Court in **Jaiminiben Hirenbhai Vyas and another v. Hirenbhai Rameshchandra Vyas and another [2014 KHC 472(4** ) **]** , wherein it has been declared that the Magistrate while passing an order under Section 125 Cr.P.C. has to give an express order for allowing maintenance from the date of petition. In the impugned order, the Family Court has not passed any express order or reason for allowing the M.C. from the date of petition, therefore, the order is liable to be set aside, at least to 6 R.P.(F.C.) No.17/2015 that extent. He also argued that the first respondent is not entitled for maintenance since she has willfully deserted the revision petitioner without any sufficient reason or cause. She is living separately from the revision petitioner and is hence disentitled to maintain as provided under Section 125 Cr.P.C. He also contended that the revision petitioner is drawing a minimum salary of Rs.13,212/- per mensem. He has other family members to be maintained. Therefore, awarding monthly maintenance at the rate of Rs.5,000/- to the respondents is excessive and unreasonable. Hence the quantum of maintenance ordered may be modified. 9. The learned counsel for the respondents, on the other hand, argued that as per Ext.P2 salary certificate that was produced and proved before the Family Court, the revision petitioner is drawing a salary of only Rs.16,011/- per month. According to him, the defence taken by the revision petitioner that the first respondent is living separately without sufficient cause is incorrect and 7 R.P.(F.C.) No.17/2015 cannot be believed. It is only due to the atrocities and cruelty that were meted out by the revision petitioner on the first respondent that she was compelled to flee from the matrimonial home. It is only to thwart the respondents' claim for maintenance that the present defence has been taken. 10. It is settled law that this Court while exercising its revisional jurisdiction under Section 19(4) of the Family Courts Act is not supposed to re-appreciate the entire pleadings and evidence on record. The only question to be looked into is whether there is any illegality or impropriety in the order passed by the Family Court in ordering maintenance. 11. On going through the impugned order passed by the Family Court, I find that the learned Judge has not assigned any express order or reason for ordering maintenance to the respondents from the date of petition. The said course adopted by the Family Court is irregular and against the ratio-decidendi of the Honourable 8 R.P.(F.C.) No.17/2015 Supreme Court in the decision referred to supra. The Honourable Supreme Court has categorically declared the law in paragraph 7 of the judgment that the court while considering an order for maintenance has to give good reasons, as evident from its order, that the direction to pay maintenance is from the date of petition or from the date of order. Such a finding is conspicuously absent in the impugned order. For the said reason, the impugned order directing the revision petitioner to pay maintenance to the respondents at the rate of Rs.5,000/- per mensem from the date of petition has to necessarily be set aside. 12. The revision petitioner does not dispute the marriage as well as the paternity of the child. His defence is that the first respondent deserted him without any sufficient reason or cause. Be that as it may, the fact remains that the revision petitioner has not taken any steps to seek a decree for a restitution of conjugal rights. It is the undisputed, that the parties are living separately since 11.7.2009. In the said circumstances, the 9 R.P.(F.C.) No.17/2015 justification for separate residence by the first respondent has to be accepted on its face value. 13. Now the only surviving question to be considered in this R.P.(F.C.) is whether the quantum of maintenance fixed by the Family Court is reasonable and moderate. 14. The first respondent has proved through Ext.P2 salary certificate that the revision petitioner is getting a salary of Rs.16,011/- per month from his employment. The Family Court after considering the status and standard of living of the revision petitioner ordered an amount of Rs.3,000/- and Rs.2,000/- to be paid as monthly maintenance allowance to the respondents. I do not find that the said amount is excessive or exorbitant. The respondents are legally entitled to live in the same status and standard of living as that of the revision petitioner, who is admittedly working as a supervisor in a public limited company. Therefore, the quantum of maintenance fixed by the Family Court is found to be reasonable and 10 R.P.(F.C.) No.17/2015 moderate. 15. It is argued by the learned counsel for the revision petitioner that the revision petitioner as in compliance with the interim orders passed by this Court deposited an amount of Rs.1,40,000/- before the Family Court. It is made clear that if the revision petitioner has deposited the aforesaid amount, the first respondent would be at liberty to withdraw the said amount from the Family Court. The Family Court while calculating the arrears of maintenance payable by the revision petitioner to the respondents shall deduct the amount deposited by the revision petitioner. 16. The M.C. was filed as early as in the year 2012 and the above order was passed as early on 31.10.2014. The said order has been passed nearly six years back. Needless to mention that, if there is any change of circumstances, the parties would be free to move the Family Court under Section 127 Cr.P.C., to seek modification of the order passed by the Family Court. 11 R.P.(F.C.) No.17/2015 With the above observations, this R.P.(F.C.) is disposed of by directing the revision petitioner to pay monthly maintenance allowance to the respondents at the rate of Rs.3,000/- and Rs.2,000/-, respectively from the date of order i.e., 31.10.2014. **Sd/-** **C.S.DIAS, JUDGE** **csl**