Khaleel V.K v. Shafnasa T and others

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 ``` ## `RPFC NO. 196 OF 2022` ``` AGAINST THE ORDER DATED 08.02.2022 IN MC 385/2018 OF THE FAMILY COURT, ``` ## `KANNUR` ## `REVISION PETITIONER/RESPONDENT:` ``` 1KHALEEL.V.K AGED 42 YEARS ASMA MANZIL, P.O PAPPINISSERI, KANNUR REPRESENTED THROUGH HIS POWER OF ATTORNEY HOLDER UNCLE SAMIYOONV.K, S/O MUHAMMED N, AGED 47 YEARS, RESIDING AT SAMIYOON VILLA, MERLI ROAD, CHUMGAM, PAPPINISSERI.P.O, TALIPARAMBA, KANNUR, PIN - 670561 BY ADVS. ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH) E.MOHAMMED SHAFI PRAJIT RATNAKARAN ``` ## `RESPONDENT/PETITIONERS:` ``` 1SHAFNASA.T AGED 33 YEARS D/O MAHAMOOD.T, THARON HOUSE, THURUTHI KOVVAL, P.O.PAPPINISSERI, KANNUR, PIN - 670561 2ADIL BIN KHALEEL. T (MINOR) AGED 15 YEARS S/O KHALEEL.V.K, REPRESENTED BY MOTHER GUARDIAN -1ST RESPONDENT SHAFNASA.T, AGED 33 YEARS D/O MAHAMOOD.T, THARON HOUSE,THURUTHI KOVVAL, P.O.PAPPINISSERI,KANNUR, PIN - 670561 3KENSA FATHIMA (MINOR) AGED 10 YEARS D/O KHALEEL. T, REPRESENTED BY MOTHER GUARDIAN-1ST RESPONDENT SHAFNASA.T, AGED 33 YEARS D/O MAHAMOOD.T, THARON HOUSE, THURUTHI KOVVAL, P.O.PAPPINISSERI, KANNUR, PIN - 670561 ``` ``` BY ADV V.R.KESAVA KAIMAL ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON ``` ``` 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.P.(F.C.) No.196 of 2022 ``` ``` 2 ``` ## **C. S. DIAS, J.** **--------------------------------------R.P.(F.C.) No.196 of 2022** **--------------------------------------Dated this the 30[th] day of November, 2023 ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C. No.385/2018 of the Family Court, Kannur, ordering the revision petitioner to pay the respondents – his wife and two children - monthly maintenance @ Rs.8,000/- to the first respondent, Rs.7,000/- to the second respondent and Rs.6,000/- to the third respondent from the date of petition. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ``` R.P.(F.C.) No.196 of 2022 ``` ``` 3 ``` ## **The facts in brief:** 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure (in short, “Code”), seeking monthly maintenance allowance from the revision petitioner. It was their case that the revision petitioner was married to the first respondent on 04.06.2006 and the respondents 2 and 3 were born in their wedlock. The revision petitioner had misappropriated the first respondent’s money and gold ornaments entrusted to him at the time of marriage. The revision petitioner is working in Sharjah and is earning a monthly income of Rs.1,00,000/-. In addition to the above income, he is also earning a monthly income of Rs.25,000/- from his property. The respondents are unable to maintain themselves and they require a monthly ``` R.P.(F.C.) No.196 of 2022 ``` ``` 4 ``` maintenance @ Rs.10,000/- each. Hence, the application. 3. The revision petitioner resisted the application by filing a written objection. He denied the allegation that he was receiving Rs.1,25,000/- as income from his employment abroad and his property. He stated that he was maintaining the respondents to the best of his ability. He also raised defence that the first respondent had willfully deserted him and made a demand to the revision petitioner to pronounce Talaq. He has to maintain his aged mother and three sisters. Hence, the application may be dismissed. 4. The respondents also filed O.P. No.33/2019 before the same Court against the revision petitioner for a decree for past maintenance. ``` R.P.(F.C.) No.196 of 2022 ``` ``` 5 ``` 5. The Family Court consolidated and jointly tried the two proceedings. 6. In the trial, the first respondent was examined as PW1 and Exts.A1 to A4(ad) were marked through her in evidence. The revision petitioner examined his Power of Attorney holder as RW1 and the Bank Manager as RW2, and marked Exts. B1 to B4 on his side. Exts.X1 to X2 were also summoned and marked in evidence. 7. The Family Court, after appreciating the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay the respondents monthly maintenance as observed earlier. 8. It is assailing the said order; the revision petition is filed. ``` R.P.(F.C.) No.196 of 2022 ``` ``` 6 ``` 9. Heard; Sri.Abdul Raoof Pallipath, the learned counsel appearing for the revision petitioner and Sri.V.R.Kesava Kaimal, the learned counsel appearing for the respondents. 10. Is there any illegality, impropriety or irregularity in the impugned order? 11. The revision petitioner admits his marriage with the first respondent and paternity of the respondents 2 and 3. 12. The respondent’s case in the application was that although the revision petitioner was employed in the UAE and earning a monthly income of Rs.1,25,000/- from his employment and property, he has refused to maintain the respondents. The respondents have no means to maintain themselves. 13. The revision petitioner denied that he was not earning a monthly income of ``` R.P.(F.C.) No.196 of 2022 ``` ``` 7 ``` Rs.1,25,000/- as alleged by the respondents. He contended that he was maintaining the respondents to the best of his ability. Moreover, the first respondent was living separately from him without sufficient cause. 14. 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. 15. 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 ``` R.P.(F.C.) No.196 of 2022 ``` ``` 8 ``` to protect women and children, who fall within the constitutional sweep of Article 15(3) and reinforced by Article 39. 16. 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 and the husband is required to earn money even by physical labour, if he is able bodied and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. ``` R.P.(F.C.) No.196 of 2022 ``` ``` 9 ``` 17. Even though the revision petitioner alleged that he was not getting an income of Rs.1,25,000/-, it can be gathered from the materials on record that he did not come down to let in any evidence. It was his Power of Attorney holder who was examined as RW1. The revision petitioner also did not produce any materials to substantiate his income. He further contended that the first respondent was living separately from him without sufficient cause. Nonetheless, there is nothing on record to prove that the revision petitioner made an attempt to resume cohabitation with her, especially when he is working in the UAE. He did not even attend the court proceedings. Therefore, by no stretch of imagination it be said that the first was respondent living separately from him. He has also not filed a ``` R.P.(F.C.) No.196 of 2022 ``` ``` 10 ``` petition for a decree for restitution of conjugal rights. 18. Taking into consideration the fact that the revision petitioner was employed abroad and he had not produced any document to prove his income, adverse income is to be drawn against him. Thus, I do not find any illegality, impropriety or irregularity in the impugned order directing the revision petitioner to pay the respondents monthly maintenance @ Rs.21,000/-. The quantum of maintenance is only reasonable and justifiable, particularly considering the status and standard of living of the revision petitioner. 20. On an overall consideration of the pleadings and materials on record and the law on the point, I do not find any circumstances warranting interference by this Court under ``` R.P.(F.C.) No.196 of 2022 ``` **==> picture [13 x 7] intentionally omitted <==** Section 19(4) of the Family Courts Act, 1984. The revision petition is meritless and is only to be dismissed at the threshold. Resultantly, the revision petition is dismissed in limine. Needless to mention that, if the revision petitioner has deposited any amount, pursuant to the orders of Family Court and this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order. **Sd/-** **C. S. DIAS JUDGE** SKP/30-11