Kalidasan v. Sunitha

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 1ST SEPTEMBER 2011 / 10TH BHADRA 1933** **RPFC.No. 195 of 2010()** **---------------------MC.173/2008 of THE FAMILY COURT, PALAKKAD** **....................** ## **REVISION PETITIONER/RESPONDENT:** **----------------------------------------** **KALIDASAN, S/O.LATE KRISHNAN NELLIKKUNNAM VEEDU, KINASSERY PO, PALAKKAD.** **BY ADV. SRI.LIJU. M.P** ## **RESPONDENT(S)/PETITIONERS:** **---------------** **1. SUNITHA, W/O.KALIDASAN,NELLIKUNNAM VEEDU KINASSERY (PO) PALAKKAD, RESIDING AT C/O.DEVARAJAN, CHEMBAKASSERY, CHOTTANIKKARA, ERNAKULAM.** **2. RIJI, AGED 16 YEARS, (MINOR)** - **D/O.KALIDASAN, REPRESENTED BY SUNITHA (MOTHER) NELLIKUNNAM VEEDU,KINASSERY (PO) PALAKKAD, RESIDING AT C/O.DEVARAJAN, CHEMBAKASSERY, CHOTTANIKKARA,ERNAKULAM.** **3. RINU, AGED 13 YEARS, (MINOR) D/O.KALIDASAN, REPRESENTED BY SUNITHA (MOTHER) NELLIKUNNAM VEEDU,KINASSERY (PO) PALAKKAD, RESIDING AT C/O.DEVARAJAN, CHEMBAKASSERY, CHOTTANIKKARA,ERNAKULAM.** **ADV. SRI.LEGY ABRAHAM FOR R1-3 SRI.P.GIREESH KUMAR FOR R1-3 SMT.V.V.RISANI FOR R1-3 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------R.P.(F.C).NO.195 OF 2010 ----------------------------------Dated this the 1[st] day of September, 2011** ## **O R D E R** Revision is by the husband, who was proceeded by the wife and children to claim maintenance from him under Section 125 of the Code of Criminal Procedure, for short, the 'Code'. Negativing the objections raised by the revision petitioner/husband claim raised was allowed directing him to pay maintenance at the rate of Rs.1,500/- per month to the wife and Rs.1,000/- each to the two children. Propriety, legality and correctness of the order so passed by the learned Judge, Family Court, Palakkad, to the extent maintenance was awarded to the wife, that alone, is challenged in the revision though it has been filed against the two children as well showing them as co-respondents with the claimant wife. 2. The main thrust of challenge canvassed by the learned counsel for the petitioner/husband is that there was improper **R.P.(FC)No.195/2010** **2** refusal on the part of the wife to cohabitate with the husband despite an offer made by him to maintain her and also the children. Even in the objections filed to the claim for maintenance, he has raised the offer, and it was reiterated when evidence was let in the proceedings before the Family court, is the submission of the counsel. The wife, in her petition, other than imputing cruelty on the husband has not stated any cause, leave alone any justifiable cause, to live separately from him and also for her failure to discharge her duties as a wife, is the submission of the counsel. However, in evidence, she had developed a case that the petitioner/husband had an illicit relationship with her sister, to justify her separate residence from him. No such case was made in her petition and, further, she had left the matrimonial home even without intimating the husband or her parents is borne out by the materials tendered in the case, according to the counsel. Even the mother of the wife, examined as RW2, had given evidence that she left the matrimonial home with the children without first cause and she has no reason to live separately from her husband. The learned Family Court Judge, overlooking the materials tendered in the **R.P.(FC)No.195/2010** **3** case, had directed the husband to pay maintenance to the wife discarding the offer made by him to maintain the wife and children subject to the condition of her coming over and staying with him. The conclusion formed by the court below to hold that his offer is not bona fide, is against the materials tendered in the case, is the submission of the counsel stating that simultaneously with the present proceedings, the husband had filed another petition before the very same court for restitution of the conjugal rights, and later, that petition had been allowed granting him a decree as applied for. When such be the case, it is submission of the counsel, the wife in the present case as she has not shown justifiable cause to live separately from the husband, is disentitled to claim maintenance from the husband, and the order of the court below granting maintenance to her is liable to be set aside. In the alternative, the learned counsel also urged for reducing the quantum of maintenance in case the order is found to be unassailable for any reason whatsoever submitting that at present the husband has no vocation, and as such, not possessed of sufficient income even for his sustenance in life. Per contra, the learned counsel for the wife submitted that there **R.P.(FC)No.195/2010** **4** is no merit in any of the challenges raised to assail the maintenance awarded by the court below. After looking into all facets of the case, on the materials placed by both sides, the court below has come to the conclusion that the wife is justified in living separately from the husband and the offer made by the husband is nothing but a ruse to resist her claim. The mother of the wife examined as RW2 had given evidence assisting and aiding the husband going even to the extent of castigating the character of her own daughter, was rightly and correctly appreciated by the court below in the backdrop of the evidence given by the wife as to the circumstances which turned her to leave the matrimonial home. Though not pleaded, her version that her husband maintained an illicit relationship with her own sister appeared to be more acceptable to the court below, which had the opportunity to record the evidence of the wife, her mother and the husband. Conclusion so formed by the court below, in the given facts of the case, does not warrant interference, is the submission of the counsel. At any rate, maintenance awarded to the wife by the court below after adjudicating the merit of her claim with reference to the **R.P.(FC)No.195/2010** **5** objections raised by her husband and analysis of the materials tendered in the case, does not call for any interference in exercise of the revisional jurisdiction, is the further submission of the counsel. Maintenance awarded to the wife is only Rs.1,500/- and there is no merit in the plea made that the husband has presently lost his job, is the argument of the learned counsel for the wife. 3. No doubt, in a proceedings under Section 125 of the Code, burden is cast upon the wife to show that she has justifiable cause to live separately from her husband, to sustain her claim of maintenance. Similarly, it is open to the husband to show that he is prepared to maintain the wife and children and her claim for maintenance lacks merit. In a case where there is an offer from the husband to maintain the wife, provided, she is prepared to cohabitate with him, not only the question whether the wife has reasonable cause to live separately from him but also whether the offer raised by the husband is bona fide, both aspects have to be considered by the court to determine the question whether the claim of the wife for maintenance is **R.P.(FC)No.195/2010** **6** sustainable. In examining such question, it is not the plea made with particulars or the evidence let in on that question but the totality of the facts and circumstances as involved in the case which deserve to be appreciated having regard to the laudable objective behind the provision covered by Section 125 of the Code, which is primarily founded to avoid vagrancy, and to provide succour to destitutes from the person, who is liable, and, having sufficient means neglgects or refuses to maintain them. In **A.S.N.Nair v. Sulochana (1981 KLT 568)** , the Division Bench of this Court has considered the scope of the pleadings, evidence etc. when an objection is raised by the husband that there is an improper refusal on the part of the wife and she has no justifiable cause to live separately from him. This Court has observed thus: “While it is true that burden of proving refusal to live with the husband rests on the husband and the burden of proving sufficient reason rests on the wife, when both sides adduce evidence and marshall circumstances before the court, the matter has to be decided on an appreciation of evidence and the circumstances and not merely on the basis of burden of proof. Considering the high legislative purpose behind the **R.P.(FC)No.195/2010** **7** provisions in Section 125 of the Code, even where the wife, on account of her lack of experience or other reasons, does not plead specific evidence in that regard, it is the duty of the court to examine the circumstances available in the case and see if these circumstances are or are not sufficient to justify the wife's refusal to husband's offer. This Court has eloquently expressed in unmistakable terms that the failure of the wife to set forward grounds or reasons to go back to her husband or even to adduce evidence in that regard is not at all to be treated as fatal, but it is for the court to examine the circumstances available in the case and see if those circumstances are or are not sufficient to justify the wife's refusal to husband's offer. It may be ideal for the spouses to live together when there is an offer to a claim for maintenance by the husband. However, the bona fides of that offer necessarily has to be tested not only on the evidence of the wife but with reference to the totality of the facts and circumstances presented in the case. In the present case, whatever be the refusal of the wife to live separately from her husband, the proved facts unmistakably reveal that both the children, who are studying, are with the mother. The eldest child, at the time when the **R.P.(FC)No.195/2010** **8** claim was filed was 16 years and the youngest 13 years, and both are girls. Whatever be the allegations raised by the mother imputing illicit relationship of her husband with her sister, even if it was not pleaded in her petition but only given expression to at the stage of evidence when she was examined before the court, the facts involved in the case would show that the husband has not taken any step to have the custody of his children if at all the wife was living separately for him without any justifiable cause. No material was also produced in the case to show that he has provided any maintenance to those children. That circumstance presented in the case cannot at all be brushed aside in examining the offer made by the husband to maintain the wife provided she comes over and stays with the children. The second proviso to sub section (3) of Section 125 of the Code is not intended to enable a recalcitrant husband to resist the claim of the wife by making an offer to maintain her on condition of her stay with him. That offer must be shown to be bona fide. Raising such an offer in the counter statement and assertion thereof in evidence, that alone, is not sufficient to show that such offer is bona fide. What is available in the present case was only **R.P.(FC)No.195/2010** **9** “Oath against Oath” by the witnesses with respect to the disputed question whether the wife had justifiable cause to live separately from the husband and the offer of the husband as bona fide or not. The learned Family Court Judge, who had the opportunity to watch the demeanour and deportment of the witnesses while recording their testimony evidently found the testimony of the wife more credible and trustworthy and that of the husband unworthy of any merit. True, the mother of the wife examined as RW2 has given evidence in support of the husband. The learned Family Court Judge has commented that she came to the court to scandalise her daughter, and the imputations made by her showing that she is a lady of easy virtue, was a case which even the husband did not dare to advance in his objections or in evidence. The evidence of RW2, the mother, would also indicate that she had divulged to the husband the misconduct of her daughter as and when she had knowledge of her misconduct. Still, the husband has no such case in his objections nor in evidence indicates that if at all there was any such misconduct from her, he was prepared to accept her when an offer was made. Leaving everything else, even the **R.P.(FC)No.195/2010** **10** question of bona fides of offer, it follows that he has no allegation against the conduct or character of the wife, and if at all there was misconduct on her part he has comdoned her acts. When the husband himself was not having any case of misconduct against the wife, the allegations raised by the mother RW2 as rightly taken note of by the Family Court Judge was unworthy of any merit at all. The wife has left the company of the husband, by itself, is not at all a ground to view that it was without justifiable cause. She is taking care of her two children, who are shown to be not cared or looked after by her husband. Her evidence would indicate that she is eking out her livelihood even attending menial jobs as a housemaid. When such be the case, looking into the totality of the facts and circumstances presented in the case, I find, the conclusion formed by the court below that she has justifiable cause to live separately from her husband, and the offer of the husband to resist her claim was without any bona fide, does not suffer form any infirmity whatsoever. 4. So far as the quantum awarded and the plea now raised **R.P.(FC)No.195/2010** **11** by the counsel for the husband seeking its reduction, if at all there is any change of circumstance whether it be under the decree of the restitution of conjugal rights or on account of the husband losing his job, as now canvassed, he can work out his remedies canvassing the change of circumstances for alteration or modification of the maintenance. No interference with the quantum of the maintenance awarded to the wife is called for where it is seen that the sum awarded is only Rs.1,500/- per month. There is no merit in the revision, and it is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp **R.P.(FC)No.195/2010** **12**