High Court of KeralaSingle Judge2023-11-20Revision petition dismissed; maintenance order ...

K.K. Muhammed s/o Kudukkan Kocham Palli v. Fathima d/o Kammu

Case / Petition Number:RPFC NO. 323 OF 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2023-11-20
Court Decision / Holding: The revision petition is dismissed. The High Court upholds the Family Court’s order directing maintenance at Rs.4,000 per month and notes that if any amount was deposited during interim orders, it may be adjusted toward arrears in calculating the final maintenance payable.
Final Disposition: Revision petition dismissed; maintenance order upheld; adjustment of deposits toward arrears permissible

Parties to the Case

Appellants / Petitioners

K.K. Muhammed s/o Kudukkan Kocham Palli

Respondents

Fathima d/o Kammu

Legal Representation & Advocates

Counsels for Petitioners

• Sri Jamsheed Hafiz

Counsels for Respondents

• Sri K.P. Sudheer

Case Synopsis & Summary

This is a revision petition under RPFC No. 323 of 2016 filed by K.K. Muhammed challenging the Family Court, Tirur, order in MC No. 382/2013 directing him to pay maintenance to his wife, Fathima, under Section 125 CrPC. The respondent-wife had approached the court alleging matrimonial cruelty, non-maintenance, and that the petitioner had contracted a second marriage during the subsistence of the marriage, asserting that she and the two children required financial support, despite the children having attained majority. The Family Court consolidated the maintenance application with related proceedings for past maintenance and return of money and ornaments, and, after trial, partly allowed the application by directing Rs.4,000 per month as maintenance from 19.07.2012. The petitioner, aged around 55 at the time of filing, contends he is a toddy tapper with no substantial means and that the second marriage is a consequence of the respondent’s refusal to live with him; he argues the quantum is excessive and not supported by his income. The court cites established jurisprudence—Rajnesh v. Neha and Anr, Captain Ramesh Chander Kaushal v. Veena Kaushal, and Bhuwan Mohan Singh v. Meena—to emphasize the protective, social-justice purpose of maintenance under Article 15(3)/Article 39 and Sec.125 CrPC. The High Court dismisses the revision petition, upholding the impugned maintenance order and permitting adjustment of any deposited amounts toward arrears.

Provisions of Law Cited

Sec.125 of the Code of Criminal ProcedureSection 19(4) of the Family Courts Act, 1984Article 15(3) of the ConstitutionArticle 39 of the Constitution

Legal Doctrines & Maxims

Maintenance is a measure of social justice to protect wives and children
Sacrosanct duty of a husband to provide financial support to wife and minor children
Courts may use some discretion or estimate (guess work) to determine the quantum of maintenance

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that he contracted a second marriage due to the respondent’s refusal to live with him and that he is a toddy tapper with no substantial means to pay maintenance. He argues the Family Court’s fixation of Rs.4,000 per month is excessive given his income and age (55 at filing) and that he has not disclosed a verifiable, substantial income. He asserts that the court did not properly evaluate evidence of his actual earnings and that the order should be redressed or quashed, including consideration of his limited means and lack of proven capacity to pay the declared amount.

Contentions of Respondents

The respondent-wife argues that she suffered cruelty and that the husband, despite claims of financial incapacity, contracted a second marriage and had means or potential earnings. She seeks maintenance for herself (and previously for children) under Sec.125 CrPC, asserting the order reflects social justice and the respondent’s obligation. She relies on the evidence and the statutory mandate to ensure protection for wives and dependants, as reinforced by jurisprudence emphasizing maintenance as a social justice remedy.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Rajnesh v. Neha and Anr	2020 (6) KHC 1	Positive	Affirms maintenance as social justice to prevent destitution of dependants.
Captain Ramesh Chander Kaushal v. Veena Kaushal & Ors.	[(1978) 4 SCC 70]	Positive	Maintenance is a measure of social justice to protect women and children.
Bhuwan Mohan Singh v. Meena & Ors.	[(2015) 6 SCC 353]	Positive	Section 125 is intended to ameliorate the hardship of a wife; husband must provide support when able.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945** **RPFC NO. 323 OF 2016** **AGAINST THE ORDER/JUDGMENT MC 382/2013 OF FAMILY COURT, TIRUR** ## **REVISION PETITIONER/S:** K.K. MUHAMMED S/O. KUDUKKAN KOCHAM PALLI, UDUMBARA HOUSE, VALIYAPARAMBU, PULIKKAL(PO), MALAPPURAM DISTRICT. BY ADV SRI.JAMSHEED HAFIZ ## **RESPONDENT/S:** FATHIMA D/O. KAMMU, THAMBRA PARAMB HOUSE, PADIKKAL, VELIMUKKU (PO) MALAPPURAM DISTRICT- 676317 BY ADV SRI.K.P.SUDHEER THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 323 OF 2016 2 ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.382/2013 of the Family Court, Tirur, ordering the revision petitioner to pay the respondent – his wife - monthly maintenance allowance @ Rs.4,000/- from the date of petition (19.07.2012). The revision petitioner was the respondent and the respondent was the petitioner before the Family Court. ## **Brief facts** 2. The respondent had filed the application under Sec.125 of the Code of Criminal Procedure (in short, “Code”) against the revision petitioner seeking monthly maintenance allowance @ Rs.10,000/-. It was her case that she was married to the revision petitioner on 30.04.1981 and they have two children born in the wedlock. The children have attained majority. The revision petitioner has treated the respondent with matrimonial cruelty. He has also contracted another marriage, during RPFC NO. 323 OF 2016 3 the subsistence of his marriage with the respondent and is living with that woman. The revision petitioner has refused to maintain the respondent. Hence, the application. 3. The revision petitioner had filed a written objection refuting the allegations in the application. He contended that he contracted the second marriage because the respondent refused to live with him. The revision petitioner is a toddy tapper and does not have the means to maintain the respondent. Hence, the application may be dismissed. 4. The respondent and her son filed O.P.No.904/2013 and the respondent filed O.P.No.150/2014 for decrees of past maintenance and return of money and gold ornaments, respectively against the revision petitioner. 5. The Family Court consolidated and jointly tried the three proceedings. The respondent was examined as PW1 and the revision petitioner was examined as RW1 and Exts.R1 and R2 were proved through him. RPFC NO. 323 OF 2016 4 6. The Family Court, by a common judgment, partly allowed the application by directing the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.4,000/-. 7. It is assailing the order; the revision petition is filed. 8. Heard; Sri.Jamsheed Hafiz, the learned counsel appearing for the revision petitioner and Sri.K.P.Sudheer, the learned counsel appearing for the respondent. 9. Is there any illegality, impropriety or irregularity in the impugned order ? 10. The respondent's case in the application was that, the revision petitioner, though having sufficient means, has refused to maintain her. Instead, the revision petitioner had during the subsistence of their marriage, contracted a second marriage and is living with the said women. 11. The revision petitioner’s defence was that he contracted a second marriage since the respondent refused to live with him. He is only working as toddy RPFC NO. 323 OF 2016 5 tapper and does not have the means to maintain the respondent as sought for in the application. Hence the application may be dismissed. 12. 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 dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 13. 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. 14. 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 RPFC NO. 323 OF 2016 6 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, husband was 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. 15. It is well settled in a plethora of judgments that the Courts are permitted to do some guess work to arrive at the quantum of maintenance to be fixed in an application filed under Section 125 of the Code. 16. In the case on hand, indisputably, the revision petitioner has stated that he has already contracted a second marriage. In view of the said admission, the separate residence of the respondent is justifiable. The respondent's claim was that the revision petitioner was employed abroad and was earning a substantial income. However, on the contrary, the revision petitioner alleged that he is only a toddy tapper and does not have the RPFC NO. 323 OF 2016 7 means to pay maintenance to the respondent, as sought for in the application. 17. The revision petitioner was aged 55 years at the time of filing of the application. There is no material to show that he is suffering from any mental or physical ailments. He has also not revealed his actual income. Therefore, it is assumed that he is an able bodied person. An able bodied person would easily earn atleast Rs.20,000/- per month in the year 2013. Thus, I am of the definite view that the quantum of maintenance fixed by the Family Court @ Rs.4,000/- per month is reasonable and justifiable. There is no irregularity or impropriety in the impugned order warranting interference of this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merit and is only liable to be dismissed. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited RPFC NO. 323 OF 2016 **==> picture [6 x 9] intentionally omitted <==** amount while calculating the arrears of maintenance payable by him as per the impugned order to the respondent. sd/- **C.S.DIAS, JUDGE** rkc/20.11.23