K.C. Visawnathan v. Jayanthi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944** **RPFC NO. 37 OF 2019** **AGAINST THE ORDER IN MC NO.112/2016 OF FAMILY COURT, PALAKKAD DATED 28.09.2018** ## **REVISION PETITIONER/COUNTER PETITIONER:** **K.C.VISAWNATHAN, AGED 54 YEARS, S/O. K.V. CHATHU, PANICHAN VEEDU, KADUKKAMKUNNAM, MALAMPUZHA, PALAKKAD, NOW WORKING AT TRACK MAINTAINER, GANG NO.8, KADUKKAMKUNNAM P.O., PALAKKAD - 678651.** **BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON** ## **RESPONDENT/PETITIONER:** **JAYANTHI AGED 42 YEARS D/O. LAKSHMANAN, KOTTAPPALLAM, KINAVALLUR, PARALI, PALAKKAD TALUK AND DISTRICT, PIN - 678612.** **BY ADV SRI.R.KISHORE (KALLUMTHAZHAM)** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RP(FC)No.37 of 2019 ..2.. ## **A.BADHARUDEEN, J.** **-------------------------------------------------------RP(FC)No.37 of 2019 -------------------------------------------------------Dated this the 15[th] day of December, 2022** ## **O R D E R** This is a revision petition filed under Section 19(4) of the Family Courts Act. The revision petitioner herein is the respondent in MC No.112 of 2016 on the file of the Family Court, Palakkad. 2. Heard the learned counsel for the revision petitioner as well as the learned counsel appearing for the respondent. 3. The respondent herein, who is the wife of the revision petitioner, had approached the Family Court and sought for maintenance, as provided under Section RP(FC)No.37 of 2019 ..3.. 125(1) of the Code of Criminal Procedure on the allegation that she did not have any means of maintenance. Whereas, the revision petitioner herein who is permanently employed in Indian railway and has been earning a fair income, filed objection and resisted the claim for maintenance. The status of the respondent as wife and birth of two girl children were admitted. Certain reasons of marital discord have been narrated in the objection. It was contended before the Family Court that the respondent had been depending upon her brothers and family members are false allegations and the revision petitioner is working as a last grade employee of railway. 4. The learned Family Court Judge appraised the contentions relying on the evidence of PW1 and RW1 respectively. The respondent pressed for grant of RP(FC)No.37 of 2019 ..4.. Rs.10,000/- as maintenance for her day to day living expenses. 5. In fact, the learned Family Court found that the respondent had no means for her sustenance, for want of evidence to hold so. 6. As regards to the legal position, in the matter of grant of allowance of maintenance under Section 125 of Cr.P.C, the law is well settled. 7. As early in [(1978) 4 SCC 70], **Captain** **Ramesh Chander Kaushal v. Mrs.Veena Kaushal &** **Ors.** the Apex Court held that the same falls within the constitutional sweep of Article 15(3) reinforcing Article 39 of the Constitution of India. 8. In [(1997) 7 SCC 7], **Jabsir Kaur Sehgal v. District Judge Dehradun & Ors.** the Apex Court held as under: RP(FC)No.37 of 2019 ..5.. _“The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.”_ 9. In [(2005) 3 SCC 636], **Chaturbhuj v. Sita Bai** , the Apex Court held that Section 125 provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. 10. In [(2021) 2 SCC 324], **Rajnesh v. Neha** RP(FC)No.37 of 2019 **==> picture [20 x 9] intentionally omitted <==** **& anr.,** the Apex Court had dealt with the relevant factors for determination of maintenance and held that, _if wife is earning, it cannot operate as a bar from being awarded maintenance by husband. In a marriage of long duration, where parties have endured relationship for several years, it would be a relevant factor to be taken into consideration. On termination of relationship, if wife is educated and professionally qualified, but had to give up her employment opportunities to look after needs of family being primary caregiver to minor children and elder members of family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependent wife to get an easy entry into workforce after a break of several years. Living expenses of child would include expenses for food, clothing, residence, medical_ RP(FC)No.37 of 2019 ..7.. _expenses, education of children. Serious disability or ill health of a spouse, child/children from marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance._ 11. The legal position is not in dispute that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate _._ Living expenses of child would include expenses for food, clothing, residence, medical expenses, education of children. Serious disability or ill health of a spouse, child/children from RP(FC)No.37 of 2019 ..8.. marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. It is further settled in law that merely because the wife is earning money, it could not be a ground to reject the claim for maintenance. The rationale is that the amount she would earn, if not sufficient to maintain the wife, then also the husband is bound to maintain his wife and to give her sufficient sum for her sustenance. 12. The respondent raised contention that the revision petitioner had been earning Rs.30,000/- per month as salary, the actual income of the revision petitioner is not fully established. However, the status of the revision petitioner as an employee of the railway is an admitted fact. 13. In such a case, the Family Court granted RP(FC)No.37 of 2019 ..9.. Rs.6,000/- as maintenance and the said amount is very meagre. In fact, grant of maintenance at the rate of Rs.6,000/- in the present case, appears to be very reasonable and the same does not require any interference at the hands of this Court by exercising the limited power of revision. Therefore, this revision petition fails and it is, accordingly, dismissed. Sd/- **A.BADHARUDEEN, JUDGE** rkj