Hashim v. Ramsi and Arshad Mohammed and Mohammed Yasin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936** ## **RPFC.No. 240 of 2014** **--------------------------------** ## **M.C.NO. 85/2013 OF FAMILY COURT, NEDUMANGADU** **----------------** **REVISION PETITIONER(S) / RESPONDENT :** **---------------------------------------------------------------** **HASHIM, AGED 34 YEARS, S/O.ABDUL AZEEZ, KANIYARUKONATH PUTHEN VEEDU, MANICKAL VILLAGE, NEDUMANGADU TALUK.** **BY ADV. SRI.M.ZIYAD** **RESPONDENT(S) / PETITIONERS :** **--------------------------------------------------** **1. RAMSI, AGED 24 YEARS, D/O.RAMLA BEEVI, KIDANGAYAM, RIYAS MANZIL, VEMBAYAM, KUTHIRAKULAM.P.O., MANICKAL VILLAGE, NEDUMANGADU TALUK.** **2. ARSHAD MOHAMMED, AGED 4 YEARS,** - **S/O.HASHIM, KIDANGAYAM, RIYAS MANZIL, VEMBAYAM, KUTHIRAKULAM.P.O., MANICKAL VILLAGE, NEDUMANGADU TALUK, REPRESENTED BY 1ST RESPONDENT.** **3. MOHAMMED YASIN, AGED 1¼ YEARS,** - **S/O.HASHIM, KIDANGAYAM, RIYAS MANZIL, VEMBAYAM, KUTHIRAKULAM.P.O., MANICKAL VILLAGE, NEDUMANGADU TALUK, REPRESENTED BY 1ST RESPONDENT.** - **R1 BY ADVS. SRI.RAM MOHAN.G.** - **SRI.G.P.SHINOD** - **SRI.MANU V.** **SRI.GOVIND PADMANAABHAN** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. ## **RPFC.No. 240 of 2014** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A1 : TRUE COPY OF THE ORDER PASSED BY THE FAMILY COURT, NEDUMANGADU DATED 07.09.2009.** **ANNEXURE A2 : TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN M.C.NO.85/2013. ANNEXURE A3 : TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER IN M.C.NO.85/2013 DATED 12.05.204.** ## **RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** Msd. ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R. P.(F.C) No.240 of 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 20[th] day of October, 2014 ## O R D E R Respondent in M.C.No.85/2013 on the file of the Family Court, Nedumangad, is the revision petitioner herein. 2. The petition was filed by respondents herein, seeking maintenance from the revision petitioner at the rate of 8,000/- per month₹ for the first petitioner, 4,000/- for the₹ 2[nd] petitioner and 3,000/- for the 3₹ rd petitioner. It is also mentioned in the petition that, the marriage was solemnised on 17.01.2008 and the 2[nd] petitioner was born earlier and application for maintenance was filed earlier and after awarding maintenance, they lived together for sometime and thereafter 3[rd] petitioner was also born. He deserted the petitioners from 01.01.2011 onwards. He is working in Gulf country and getting 60,000/- per month and he is also₹ R.P.(F.C.). 240/2014 2 having landed property and getting 10,000/- per month as₹ income. First petitioner is unemployed and she in not able to maintain herself and the children. So she filed the petition. 3. Revision petitioner/respondent, appeared and filed counter, denying the allegations and stated that, the first petitioner deserted him and he is not working in Gulf and he is not having the income as stated. So he filed O.P.No.669/2012 for restitution of conjugal rights and that is pending. So the petitioners are not entitled to get maintenance. 4. The first petitioner was examined as PW1 and Exts.P1 to P3 were marked on her side. The counter petitioner was examined as RW1. After considering the evidence on record, the court below found that, the petitioners are unable to maintain themselves and directed the revision petitioner herein to pay 7,000/-₹ as maintenance to the first petitioner, 4,000/- to the 2₹ nd R.P.(F.C.). 240/2014 3 petitioner and 2,000/- to the 3₹ rd petitioner. Aggrieved by the same, the present revision has been filed by the petitioner. 5. Heard both sides. 6. The counsel for the revision petitioner submitted that, there is no finding by the court below that the revision petitioner is having income to maintain the respondents herein. Further as per Annexure-A1 order, he was paying only a lesser amount as maintenance and now exorbitant amount has been awarded as maintenance. Further, as per Section 125(2), normally the order to pay maintenance must be from the date of order and the reason must be stated, if it is ordered from the date of petition. 7. The counsel for the respondents submitted that, after Annexure-A1 order, they lived together and thereafter another child was also born and it was thereafter he neglected them to maintain. Further, he was living separately on account of the ill-treatment and the amount R.P.(F.C.). 240/2014 4 awarded is reasonable as he is working abroad and getting good income. 8. It is an admitted fact that, the revision petitioner married the first respondent and earlier a child was born, who is the 2[nd] respondent now and since he did not maintain her, she filed M.C.98/2009 before the Family Court, Nedumangad, and as per Annexure-A1 order, there is an amount of 1,000/-, each was ordered as maintenance₹ on the basis of consent. This order was dated 07.09.2009. It appears that, after this, they started living together that resulted in the gift of 2[nd] child, who is the 3[rd] petitioner herein. The allegation was that, after the birth of the 2[nd] child, he again neglected to maintain them and that prompted them to file the application. There is no evidence adduced to prove that, first petitioner is having any independent income to maintain herself and to maintain the children as well. Once it is proved that the wife is not capable of maintaining herself, then the liability to maintain R.P.(F.C.). 240/2014 5 the husband starts and he will have to pay maintenance to wife as well as children. 9. PW1 had gone to the witness box and stated that, on account of the ill-treatment she could not live with him and she had categorically stated that she did not deserted the revision petitioner, but due to the ill-treatment she is unable to live with him. So there is nothing wrong for the court below to come to the conclusion that, she is entitled for maintenance not only for herself but also for the children as well. 10. As regards the capacity to maintain is concerned, the Hon’ble Supreme Court has held in the decision reported in [ **2014(3) KLT 314 (SC)] Bhuwan Mohan Singh v. Meena** , relying on the earlier decisions on the subject that, “Regard being had to the be solemn pledge at the time of marriage and also consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a begger. A situation is not to be maladroitly created where under she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial R.P.(F.C.). 240/2014 6 support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the court that, the wife is not entitled to get maintenance from the husband on any legally permissible grounds”. ## 11. Further in the same decision, it has been ## observed that, “She is entitled in law to lead a life in a similar manner as she would have to live in the house of her husband. That is where status and strata come into play and that is where the obligation of the husband in case of wife, become a prominent one. In proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity”. 12. So it is clear from this that, there is a legal as well as moral obligation cast on the husband to maintain the wife and children in the same manner in which they were living at the time when they were living together. It is an admitted fact that, the revision petitioner was working abroad and there is nothing on record to show that he has been incapacitated from doing any work as well. So under the circumstances, there is no merit in the submission made by the counsel for the revision petitioner that he is unable to pay maintenance and he is not having income to R.P.(F.C.). 240/2014 7 maintain the respondents as well. 13. As regards the quantum of maintenance is concerned, considering the present cost of living and the amount required for providing education to the children and to lead a decent life, some good amount is required, which the respondent is bound to provide to his wife and children, if they want to live in a dignified manner in the society. So under the circumstances, the amount awarded by the court below as maintenance to the petitioner cannot be said to be on higher side as well. 14. The counsel for the petitioner also relied on the decision reported in **(2008(9) SCC 632) Shail Kumari Devi and Another v. Krishan Bhagwan Pathak** , to show that normally maintenance can be ordered only from date of order as special reason has to be given if it is ordered from the date of petition. This has been considered by the later decision, relied on by this court in **2014(3) KLT 314 (SC) Bhuwan Mohan Singh v. Meena.** There is nothing wrong R.P.(F.C.). 240/2014 8 for the court below to pass an order from the date of petition and this court can consider the circumstances, which warranted the court below to pass an order of maintenance from the date of petition in the revision as well and if the court feels that there is no illegality in awarding maintenance from the date of petition, though no reasons stated it need not interfere, this court can consider that and only need to interfere, if no circumstances warrant to pay the maintenance from the date of petition. Other contentions raised was that, there is no special reason given for payment of maintenance from the date of petition. The Section only says that, the amount will be payable either from the date of order or from the date of petition, if so ordered. Further considering the fact that, the first petitioner is an young lady with two children has to live in the society and the 2[nd] child was gifted after the first maintenance petition was disposed of when they started residing together on the hope that her husband will provide R.P.(F.C.). 240/2014 9 her and the child a better future, it cannot be said that, the order of maintenance ordered from the date of petition requires any interference at the hands of this court. So considering the circumstances, the revision lacks bonafidies and the same is liable to be dismissed. In the result, the petition is dismissed Sd/- ## **K. Ramakrishnan, Judge** // True Copy // P.A. to Judge ss