Helvin K. Davis v. Mariyat Jose and Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945** **RPFC NO. 52 OF 2016** **AGAINST THE ORDER/JUDGMENT MC 214/2012 OF FAMILY COURT,** ## **IRINJALAKUDA** ## **REVISION PETITIONER/S:** HELVIN K. DAVIS S/O.DEVASSY, KANJIRAPARAMBIL HOSUE, KUTTUR VILLAGE, KUTTUR DESOM, TRISSUR DISTRICT. BY ADV SRI.T.N.MANOJ ## **RESPONDENT/S:** 1 MARIYAT JOSE D/O.JOSE T.A., THATTIL HOUSE, KUTTUR P.O., THRISSUR DISTRICT -680 317. 2 DAVIS HELVIN K. AGED 8 YEARS MINOR, REPRESENTED BY MOTHER MARIYAT JOSE ---DO---DO. 3 ANITTA HELVIN K. AGED 5 YEARS MINOR, REPRESENTED BY MOTHER MARIYAT JOSE ---DO---DO. BY ADV SRI.N.L.BITTO THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 52 OF 2016 2 ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C.No.214/2012 of the Family Court, Irinjalakuda, ordering the revision petitioner to pay the 1[st] respondent monthly maintenance allowance @ Rs.2,000/- from the date of application till June 2014 and the respondents 2 and 3 monthly maintenance allowance @ Rs.2,500/- each from the date of application till June 2014 and, thereafter, @ Rs.2,000/each until further order. The revision petitioner was the respondent and the respondents were petitioners before the Family Court. 2. The respondents had filed the application under Section 125(1) of the Code of Criminal Procedure (in short, 'Code') against the revision petitioner, for monthly maintenance allowance. It was their case that, the 1[st] respondent was married to the revision petitioner on 22.05.2005. The respondents 2 and 3 were born in their wedlock. The revision petitioner had treated the 1[st] respondent with matrimonial cruelty and had RPFC NO. 52 OF 2016 3 misappropriated her patrimony. On 01.11.2011, father of the revision petitioner attempted to assault the 1[st] respondent. From then on, the respondents are residing in the 1[st] respondent's Aunty's house at Kuttur. The revision petitioner has refused to maintain the respondents. They do not have any means to maintain themselves. The revision petitioner is working as an E.D.Mail Carrier in the Postal Department drawing a salary of Rs.25,000/- per month. Therefore, the respondents are entitled to monthly maintenance allowance @ Rs.3,000/- each. Hence, the application. 3. The revision petitioner had filed his written objection refuting the allegations in the application. He contended that the 1[st] respondent left matrimonial home on her own volition and without any sufficient cause. The revision petitioner is ready to look after to the respondents. He has filed a petition for a decree for restitution of conjugal rights. The revision petitioner is only drawing a monthly salary of Rs.6,427/-. He is already paying Rs.500/- per month towards maintenance of the 1[st] RPFC NO. 52 OF 2016 4 respondent. Hence, the application may be dismissed. 4. The 1[st] respondent was examined as PW1 and Exts.A1 to A8 were marked through her in evidence. The revision petitioner and two witnesses were examined as RWs 1 to 3 and Exts.B1 to B14 were marked in evidence. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application as already observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri.Manoj T.N., the learned Counsel appearing for the revision petitioner and Sri.N.L.Bitto, the learned Counsel appearing for the respondents. 8. Is there any illegality, impropriety or irregularity in the impugned order ? 9. The revision petitioner admits his marriage with the 1[st] respondent and does not dispute the paternity of the respondents 2 and 3. Thus, the sole question for determination is the quantum of maintenance fixed by the Family Court. RPFC NO. 52 OF 2016 5 10. The respondents' case in the application was that although the revision petitioner was working as an E.D.Mail Carrier in the Postal Department and was drawing a salary of Rs.25,000/- per month, he had willfully refused to maintain the respondents. 11. The revision petitioner's defence was that the 1[st] respondent was living separately from him without any sufficient cause and, therefore, she was not entitled to maintenance. Moreover, he was only drawing a salary of Rs.6,427/- per month and he was paying Rs.500/- per month as maintenance allowance to the 1[st] respondent. 12. In the trial, the 1[st] respondent admitted that she had secured an employment in the Railway Department in June 2014. The revision petitioner had produced Ext.B7 pay slip to prove that he was earning only Rs.7,800/- per month. 13. Even though the revision petitioner contended that he had filed a petition for a decree for restitution of conjugal rights, there is nothing on record to prove that a decree was passed in his favour. It is conceded by both RPFC NO. 52 OF 2016 6 sides that, the marriage between the couple was severed by decree of divorce on mutual consent. Therefore, even before the passing of the impugned order, the 1[st] respondent was the divorced wife of the revision petitioner. 14. The Family Court, after analysing the pleadings and materials on record, held that the 1[st] respondent is entitled to maintenance from the date of application till June 2014, the date on which she secured the employment, and the respondents 2 and 3 are entitled to monthly maintenance allowance initially @ Rs.2,500/and, thereafter, @ Rs.2,000/- each per month. 15. On an appreciation of the pleadings and materials on record, I do not find any error in the quantum of maintenance awarded to the 1[st] respondent. Nonetheless, I am of the view that the direction to pay Rs.2,500/- per month to the respondents 2 and 3 till June 2014 and, thereafter, at Rs.2,000/- each is erroneous and irrational. There is no reason stated in the order for the above conclusion. Ext.P7 salary certificate shows that the RPFC NO. 52 OF 2016 7 revision petitioner was drawing Rs.7,500/- per month. Therefore, I am of the view that, it would be reasonable and justifiable to direct the revision petitioner to pay monthly maintenance allowance to the respondents 2 and 3 @ Rs.2,000/-, from the date of application until further orders. 16. The learned Counsel appearing for the revision petitioner argued that, the 2[nd] respondent will attain majority in April 2024. If that be the case, it would be open to the revision petitioner to move the Family Court at the appropriate stage and seek for the cancellation of the order as against the 2[nd] respondent, under Section 127 of the Code. 17. In the celebrated decision in **Rajnesh v. Neha and Anr.** [2020 (6) KHC 1], the Hon'ble Supreme Court 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. RPFC NO. 52 OF 2016 8 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 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. 20. On an overall consideration of the pleadings and materials on record and the law on the point, I do not find any illegality, impropriety or irregularity in the impugned order, except for the finding rendered above as regards RPFC NO. 52 OF 2016 9 the quantum of maintenance payable to respondents 2 and 3, warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. 21. Resultantly, the revision petition is partly allowed as follows: - (i) The impugned order passed in favour of the 1[st] respondent is confirmed. - (ii) The monthly maintenance allowance granted to the respondents 2 and 3 @ Rs.2,500/- each from the date of application till June 2014, is modified and reduced, by ordering the revision petitioner to pay the respondents 2 and 3 monthly maintenance allowance @ Rs.2,000/- from the date of application until further orders. - (iii) If the revision petitioner has deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited amount while calculating the arrears of maintenance payable to the respondents. (iv) Needless to mention, the parties would be at RPFC NO. 52 OF 2016 **==> picture [13 x 9] intentionally omitted <==** liberty to move the Family Court, for alteration/modification/cancellation of the impugned order under Section 127 of the Code. Sd/- **C.S.DIAS, JUDGE** rkc/15.12.23