Jalaludheen v. Sainabha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **MONDAY, THE 29TH DAY OF SEPTEMBER 2014/7TH ASWINA, 1936** ## **RPFC.No. 335 of 2014 ()** ## **------------------------** ## **MC 35/2012 of FAMILY COURT,THRISSUR** **..........** ## **REVISION PETITIONER/RESPONDENT:** **---------------------------------------------------** **JALALUDHEEN, AGED 48 YEARS S/O AMBALATHUVEETTIL MUHAMMED ELAVALLY DESOM AND VILLAGE, CHAVAKKAD TALUK THRISSUR DISTRICT.** ## **BY ADV. SRI.K.A.SATHEESA BABU** ## **RESPONDENTS/PETITIONERS:** **----------------------------------------** ## **1. SAINABHA, AGED 43 YEARS** **D/O PULICHARAMVEETTIL HAMEED, CHITTATTUKARA PANDARAKKAD DESOM, ELAVALLY VILLAGE, CHAVAKKAD TALUK THRISSUR DISTRICT.** ## **2. JASEENA, AGED 20 YEARS,** **D/O SAINABHA, PULICHARAMVEETTIL HOUSE, CHITTATTUKARA PANDARAKKAD DESOM, ELAVALLY VILLAG, CHAVAKKAD TALUK THRISSUR DISTRICT. (JASEENA IS NOW AGED 20 YEARS AND A MAJOR)** ## **3. MINOR JAWAD, AGED 15 YEARS** **S/O SAINABHA, PULICHARAMVEETTIL HOUSE, CHITTATTUKARA PANDARAKKAD DESOM, ELAVALLY VILLAG, CHAVAKKAD TALUK THRISSUR DISTRICT.** ## **4. MINOR JAREEHA, AGED 13 YEARS** **D/O SAINABHA, PULICHARAMVEETTIL HOUSE, CHITTATTUKARA PANDARAKKAD DESOM, ELAVALLY VILLAG, CHAVAKKAD TALUK THRISSUR DISTRICT.(RESPONDENTS 3 AND 4 REPRESENTED BY MOITHER SAINABHA , FIRST RESPONDENT HEREIN).** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **okb** ## **K.HARILAL, J.** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **R.P (F.C) No.335 of 2014** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 29[th] day of September, 2014 ## **ORDER** The revision petitioner is the respondent in M.C. No.35/12 on the files of the Family Court, Thrissur. The above petition was filed under Section 125(1) of the Cr.P.C. by the respondents herein, who are the wife and the children of the revision petitioner, claiming maintenance allowance from the revision petitioner. According to the 1[st] respondent, she is the legally wedded wife of the revision petitioner and the respondents 2 to 4 are the children born in that wedlock. The revision petitioner is legally liable to pay maintenance allowance to them under Section 125 of the Cr.P.C. But, he has been neglecting to maintain them and refusing to pay maintenance allowance to them. The revision petitioner is doing business abroad and deriving a monthly income of Rs.50,000/- per month, whereas the 1[st] respondent has no job or any means to eke out livelihood. Now she is depending upon her parents and _**R.P(FC).335/14**_ **:2:** relatives for livelihood. The respondents claimed Rs.15,000/- in total for their maintenance. 2. The revision petitioner filed a counter statement admitting the marriage with the 1[st] respondent and the legitimacy of the respondents 2 to 4. According to him, it is incorrect to state that he is working abroad and earning monthly income of Rs.50,000/-. He contended that the 1[st] respondent miserably failed to discharge her responsibilities as a wife and she was not prepared to live with him. It is also contended that mediators had intervened in the matter and thereby he had assigned the properties having an extent of 15 cents in favour of the 1[st] respondent as per registered assignment deed No.1820/09. The sale consideration to the tune of Rs.60,500/- was accounted for the future maintenance of the respondents. Hence the respondents are not entitled to get maintenance allowance. It is also contended the he had given away the 2[nd] respondent in marriage. According to him, he is a tailor by avocation and now he is not able to do the said work due to various ailments and now he is working as a gardener in Gulf country and getting Rs.6,000/- per month after meeting his expenses. He had married another lady and he has to look after _**R.P(FC).335/14**_ **:3:** that lady also. The 1[st] respondent is an employee of Anugraha Kuri Company at Pavaratty and in addition to that she is earning a monthly income of Rs.10,000/- from her business of sweets. After considering the rival contentions, the court below directed the revision petitioner to pay the maintenance allowance @ Rs.2,500/- to the 1[st] respondent, Rs.2,000/- to the 3[rd] respondent and Rs.1,500/- to the 4[th] respondent. 3. In view of the rival contentions, the short question that arises for consideration is, whether the court below can be justified in directing the revision petitioner to pay maintenance allowance at the rates shown above? 4. Going by the impugned order, it is seen that the marital status of the 1[st] respondent and the legitimacy of the other respondents are not disputed. But it is the case of the revision petitioner that the 1[st] respondent has failed to discharge her duty as a wife and she is living separately without sufficient reason. Going by the evidence available on record, it could be seen that the revision petitioner was represented by a power of attorney holder only and he was not available to adduce evidence to substantiate his contentions raised in the counter statement. The power of attorney holder who was examined as _**R.P(FC).335/14**_ **:4:** R.W.1 had no objection to give maintenance allowance to the respondents. The learned Judge observed that R.W.1 has stated so in the evidence. Further, R.W.1 has deposed before the Court that the revision petitioner used to send money to the respondents for maintenance. Thus, the evidence adduced by R.W.1 for and on behalf of the revision petitioner goes against the contentions raised by the revision petitioner in his counter statement. Needless to say, if that be so, there is no bona fides in the contention that the 1[st] respondent has failed to discharge her duties as a wife and living separately without sufficient reasons. 5. Ext.D1 is the copy of the sale deed which would show that he has assigned 15 cents of property in the name of the 1[st] respondent. But, the impugned order itself shows that it is the property wherein she is residing along with the children. I am of the opinion that the said assignment of the property, wherein the respondents are residing, cannot be taken as an exception to get over the statutory liability under Section 125 of the Cr.P.C. to pay maintenance allowance. Though the revision petitioner has contended that now the 1[st] respondent is an employee of Anugraha Kuri Company and she is doing the _**R.P(FC).335/14**_ **:5:** business of sweets and earning a monthly income of Rs.10,000/-, the said contention is not proved by any evidence either oral or documentary. The revision petitioner has no case that the 1[st] respondent was employed and she was doing business of sweets while she was residing along with the revision petitioner. In **Chathurbhuj v. Sita Bai (2008 (1) KLT 41 (SC))** , the Apex Court held that the efforts made by wife after desertion to survive somehow would not take away the right to get maintenance allowance. The test is, whether wife is in a position to maintain herself in the way she was used to in the house of her husband? Having regard to the fact that the revision petitioner left the company of the 1[st] respondent leaving her and three children, she can be justified in seeking employment or business to eke out livelihood. But, such income cannot be taken into account to consider the question whether the respondents are able enough to maintain themselves. Thus, I concur with the finding of the court below that the respondents are entitled to get maintenance allowance from the revision petitioner. 6. Coming to the quantum of maintenance allowance, the learned counsel for the revision petitioner submits that the _**R.P(FC).335/14**_ **:6:** quantum of maintenance allowance determined by the court below is excessive and disproportionate with his income. Admittedly, the revision petitioner is working in Gulf country as a gardener. According to him, he is getting Rs.6,000/- only per month. But, no evidence has been adduced to substantiate the said contention. In the absence of sufficient evidence, an adverse inference can be drawn against the quantum of income which is being received by him in Gulf country. 7. Though he contended that he married again and he has to maintain his second wife, that plea cannot be taken as a proposal to escape from the statutory liability to pay maintenance allowance to the first wife and the children born in that wedlock. Even though personal law permits him to marry more than once and maintain wives, according to the said law, he is liable to maintain all wives and children equally. Otherwise, the personal law says that, it is an injustice. If that be so, the second marriage cannot be taken as a factor in deciding the quantum of maintenance allowance. 8. Having regard to the status of the parties, the standard of life, living costs and the income of the revision petitioner, I find that the quantum of allowance determined by the court _**R.P(FC).335/14**_ **:7:** below is just and proper and there is no reason to interfere with the determination of the quantum of maintenance allowance also. 9. The learned counsel for the revision petitioner further urged for some time to pay the arrear in instalments. Having regard to the facts and circumstances of the case, the revision petitioner is given six months time to pay the arrear provided that half of the entire arrear will be paid within three months and the entire balance will be paid within the next three months. It is made clear that in the event of default, the Execution Court is at liberty to realise the entire amount in lump sum. This Revision Petition is dismissed accordingly. Sd/- **(** _**K.HARILAL, JUDGE)**_ okb.