Divya and Abhay Krishna v. Muraleedharan K S/o Kannamakkayil Velayudhan Nair

1 RPFC 196 OF 2015 # **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.196 OF 2015** **AGAINST THE ORDER IN MC 126/2012 OF FAMILY COURT,THRISSUR** ## **PETITIONERS/PETITIONERS:** **1 DIVYA AGED 28 YEARS D/O. KAITHAPAN VELAYUDHAN, KADAVALLUR DESOM AND P.O., KRIKKAD VILLAGE, THALAPILLY TALUK, PIN- 680 543.** **2 MINOR ABHAY KRISHNA REPRESENTED BY MOTHER AND GUARDIAN, DIVYA, AGED 28, D/O. KAITHAPAN VELAYUDHAN, KADAVALLUR DESOM AND P.O., KRIKKAD VILLAGE, THALAPILLY TALUK, PIN- 680 543.** **BY ADV. SRI.P.K.SAJEEV** ## **RESPONDENT/S:** **MURALEEDHARAN K S/O. KANNAMAKKAYIL VELAYUDHAN NAIR, PATTITHARA AMSOM DESOM AND P.O., OTTAPALAM TALUK- 679 534.** **R1 BY ADV. SMT.R.RAJITHA R1 BY ADV. SRI.SANTHOSH P.PODUVAL R1 BY ADV. SMT.VINAYA V.NAIR** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14-02-2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RPFC 196 OF 2015 ## **ORDER** The revision petitioners were the petitioners in M.C No.126/2012 on the file of the Family Court, Thrissur. The respondent in this revision petition [in short RPF(FC)] was the respondent in the maintenance case ( in short MC). 2. The revision petitioners had filed the MC, inter alia, pleading as follows:. The 1[st] revision petitioner was married to the respondent on 7.9.2008. The 2[nd] revision petitioner was born in their wedlock on 13.6.2009. The respondent is working in a Bakery, and that he is getting a salary of not less than Rs.15,000/- per month. He is also getting income from his property at the rate of Rs.5000/- per month. As the 1[st] revision petitioner did not part with her gold ornaments, the respondent and his family members treated her 3 RPFC 196 OF 2015 with severe cruelty. She was not permitted even to visit her parents. After the 1[st] revision petitioner went to her parental home for the festival in the nearby temple, the respondent and his family members did not permit her to enter the matrimonial home. She filed a complaint before the Police. Since 14.2.2011, the respondent has neglected to maintain the revision petitioners. The revision petitioners require maintenance at the rate of Rs.5000/- per month. 3. The MC was resisted by the respondent, who filed a written objection, inter alia, pleading as follows: He admitted the marriage as well as the paternity of the child. He denied the assertion that he is getting a salary of Rs.15,000/- per month, and that he is also getting income from his property. According to him, the 1[st] revision petitioner left the matrimonial home on her own accord,without any 4 RPFC 196 OF 2015 sufficient reason or cause. She is residing in her parental home and has refused to resume cohabitation. The respondent is ready to resume cohabitation, if the 1[st] revision petitioner returns back to the matrimonial home. Despite various mediation efforts made by the relatives of the parties, the 1[st] revision petitioner refused to return to the matrimonial home. The respondent has filed O.P. 898/2011 before the Family Court, Palakkad, seeking a decree for restitution of conjugal rights. He prayed that MC be dismissed. 4. The 1[st] revision petitioner was examined as PW1. The respondent was examined as RW1. He examined two other witnesses as RW2 and RW3. Exts.D1 and D2 were marked through them. Exts.X1 to X3 were also marked through the witnesses. 5. The Family Court after considering the 5 RPFC 196 OF 2015 pleadings and evidence on record, by the impugned order allowed the MC in part by ordering the respondent to pay monthly maintenance allowance to the 2[nd] revision petitioner at the rate of Rs.1000/per month. The 1[st] revision petitioner's claim for maintenance allowance was rejected. 6. It is aggrieved by the order of the Family Court limiting the 2[nd] revision petitioner's claim for maintenance at the rate of Rs.1000/- per mensem that this RP(FC) is filed. 7. Heard Sri. P.K.Sajeevan, the learned counsel for the revision petitioners and Sri.Santhosh.P.Poduval, the learned counsel for the respondent. 8. The learned counsel for the revision petitioners argued that the revision petitioners grievance is only in respect with the amount 6 RPFC 196 OF 2015 ordered by the Family Court to the 2[nd] revision petitioner at the rate of Rs.1000/- per month, which is too low. According to him, considering the status and standard of living of the respondent, the Family Court ought to have ordered at least Rs.5000/- per month to the 2[nd] revision petitioner. The 2[nd] revision petitioner cannot meet to his sustenance at the rate of Rs.1000/- as ordered by the Family Court. He also contended that the Family Court has gone wrong in granting maintenance allowance to the 2[nd] revision petitioner only from the date of order. The 2[nd] respondent being a minor child who is under a disability, the Family Court ought to have granted maintenance to the child from the date of petition as laid down by this Court in C.P.Divakaran v. Subhadra and another [2007 (4) KHC 857]. 9. The learned counsel for the respondent on 7 RPFC 196 OF 2015 the other hand contended that the Family Court considering the income of the respondent has rightly ordered only an amount of Rs.1000/- per month to the 2[nd] revision petitioner. According to him, the respondent is working as an employee in a Bakery and is getting a salary of Rs.5000/- per month. There is no illegality in the order passed by the Family Court by limiting the amount to Rs.1000/- per month and ordering maintenance from the date of order. 10. The paternity of the child is not disputed. The only defence of the respondent is that the 1[st] revision petitioner has deserted him without any sufficient reason or cause. The so-called desertion by the 1[st] revision petitioner cannot be a hindrance for the 2[nd] revision petitioner's right to be maintained by his father. Even though the respondent took a defence that he is only getting a 8 RPFC 196 OF 2015 salary of Rs.5000/- per month, there is no cogent evidence to prove his assertions. He does not have a case that he is not an able bodied person. Even taking into consideration the notional income of an able bodied person, the respondent is deemed to be getting an average income of at least Rs.500/per day. If the said notional income is taken into consideration, the respondent is deemed to be getting an income of Rs.15,000/- per month. 11. Having regard to the fact that the revision petitioner is getting Rs.15,000/- per month, I find that the Family Court has gone wrong in only awarding an amount of Rs.1000/- per month to the 2[nd] revision petitioner, the son of the respondent. In the said circumstances, I hold that the 2[nd] revision petitioner is entitled to maintenance allowance at the rate of Rs.2500/- per month from the respondent, in order to live in the same status 9 RPFC 196 OF 2015 and standard of living of the respondent. 12. Taking into consideration the fact that, the 2[nd] revision petitioner is only a minor child, and the law declared by this Court in C.P.Divakaran's case (supra), I set aside the finding of the Family Court that the child is only entitled for maintenance from the date of order . As no interim maintenance allowance was paid by the respondent, during the pendency of the M.C, the Family Court ought to have directed the respondent to pay maintenance allowance to the 2[nd] revision petitioner from the date of petition onwards, i.e. from 14.02.2012, taking into account that he is only a minor and has the protection of law. 13. In light of the aforesaid findings, I allow this RP(FC) in part, by modifying the impugned order and enhancing the maintenance allowance 10 RPFC 196 OF 2015 from Rs 1,000/- to Rs 2,500/- per month. The respondent is directed to pay the 2[nd] revision petitioner monthly maintenance allowance at the rate of Rs.2,500/- from 14.2.2012 onwards. With the above observations, this RP (FC) is disposed of. ma/14.02.2020 Sd/-C.S.DIAS, JUDGE ## /True copy/ P.S to Judge