Chellappan v. Sulochana and State of Kerala (RPFC No. 13 of 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 RPFC.No. 13 of 2007(E) ---------------------MC.208/2003 OF THE FAMILY COURT, ERNAKULAM .................... : REVISION PETITIONER/RESPONDENT ----------------------------------------------- CHELLAPPAN, AGED 51 YEARS, S/O.SUBRAMANIAN, KANESSERY HOUSE, ILLETHODU KARA, ERNAKULAM DISTRICT. BY ADV. SRI.P.B.ASOKAN SRI.GEO PAUL ## RESPONDENTS: PETITIONER & STATE ------------------------ 1. SULOCHANA, AGED 49 YEARS, W/O.CHELLAPPAN, KANESSERY HOUSE, ILLETHODU KARA, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.SUNIL NAIR PALAKKAT SMT.R.LEELA SRI.K.N.ABHILASH THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J** ## **----------------------** R.P.F.C.No.13 of 2007 ---------------------------------------Dated this the 7[th] day of February 2008 ## **O R D E R** This revision petition is directed against an order passed under Section 125 Cr.P.C by the Family Court directing the petitioner to pay an amount of Rs.900/- per mensum to the claimant, his divorced wife. The marriage is admitted. Divorce is also conceded though it is contended that the order of divorce is challenged in proceedings before the superior court. The petitioner relied on the circumstance that while the marriage subsisted, the claimant had staked a claim for maintenance under Section 125 Cr.P.C and the Family Court had rejected the said claim holding that the parties were residing separately by mutual consent under Section 125(4) Cr.P.C. Before the Family Court, the claimant/divorced wife tendered evidence as PW1. The petitioner did not adduce any evidence. 2. The learned Judge, in these circumstances, came to the conclusion that the claimant's entitlement is established and considering the totality of circumstances directed payment of a meager amount of Rs.900/- per mensum as monthly maintenance payable by the petitioner. R.P.F.CNo.13/2007 2 3. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner assails that impugned order on five grounds. First of all it is contended that the order of divorce is challenged and the appeal against the order of divorce is pending before the Division Bench of this court. Admittedly, there is no order of stay. Admittedly, there is no stipulation in the order that the order of divorce will take effect only after the appeal is disposed of. It is trite that under Indian law, the mere pendency of an appeal will not in any way affect the validity or enforceability of an order appealed against. In these circumstances, the mere fact that the appeal is pending, will not, in any way alter the legal status of a claimant wife as a divorced wife. The said contention cannot succeed. 4. Secondly, though that contention is not pressed strenuously by the learned counsel for the petitioner, it was urged that parties are residing separately by mutual consent. The said contention cannot, obviously stand in the light of the decision of the Division Bench of this court in A.S.N.Nair v. Sulochana [1981 KLT 568] and the later decision of the Supreme R.P.F.CNo.13/2007 3 Court in Gurmit Kaur v. Surjit Singh @ Jeet Singh [1996(1)KLJ 192]. The stipulation under Section 125(4) Cr.P.C, it is by now trite can operate only when there is subsistence of the legal marriage and the consequent obligation to co-habit. When the marital tie is dissolved, their separate residence cannot be reckoned as separate residence by mutual consent. No consent or mutual consent is necessary as the parties have no obligation to co-habit. On that reason, the second reason cannot also lie. Of course, I note that the learned counsel for the petitioner has not chosen to press that contention. 5. Thirdly, it is contended that the petitioner had, when they started separate residence, conveyed to the claimant/divorced wife, properties. It is admitted that the wife had conveyed some properties to him also. Such arrangement cannot be reckoned as provisions made for the maintenance of the wife. Evidently, they were only settling their mutual claims. At any rate, there is nothing to show that even with those properties, the claimant can be held to be a person who is not unable to maintain herself. The mere fact that the parties had conveyed properties to each other when they started separate R.P.F.CNo.13/2007 4 residence is no reason to conclude that the petitioner has discharged his legal obligation to maintain his divorced wife or to come to the conclusion that the divorced wife/claimant is not a person unable to maintain herself. The third contention must also hence fail. 6. Fourthly, it is contended that the quantum of maintenance awarded is excessive. The petitioner is admittedly an agriculturist. He has landed properties also. The claimant/divorced wife asserted that she has no income or employment. That assertion is not seen effectively or seriously controverted. The petitioner has not chosen to adduce any evidence at all. In these circumstances, I am of the opinion that the court below was absolutely justified in coming to the conclusion that the claimant is a woman unable to maintain herself and that the petitioner is having sufficient means. The direction is to pay only an amount of Rs.900/- per mensum. By no stretch of imagination, can the contention be accepted that the quantum of maintenance awarded is excessive. Going by the indications available about the needs of the claimant and the means of the petitioner, the amount awarded must be held to be R.P.F.CNo.13/2007 5 absolutely justified. At any rate, no revisional interference is warranted. 7. Fifthly and finally, it is contended that maintenance must have been ordered only from the date of the order and not from the date of the petition. The learned counsel for the petitioner submits that the order of divorce was passed only on 13/6/2005 and at any rate, the claimant is not entitled to claim maintenance for any anterior period. In the light of Section 125 (4) Cr.P.C and the earlier order passed in the M.C by the Family Court, I reckon that as a valid contention. The entitlement of the claimant for maintenance under Section 125 Cr.P.C can revive only from the date of the order of divorce and not earlier. In this view of the matter, I am satisfied that the impugned order can be modified and it can be directed that the petitioner is entitled for maintenance only from the date of divorce, that is 13/6/2005. 8. This revision petition can succeed only to the above extent. It is ordered accordingly. ## **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge R.P.F.CNo.13/2007 6 R.P.F.CNo.13/2007 7 ## **R.BASANT, J** C.R.R.P.No. ORDER 21ST DAY OF JULY 2006