Leeladevi v. Subrahmanian

1 R.P (FC) No.207 of 2010 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 207 OF 2010 ``` ``` AGAINST THE ORDER/JUDGMENT MC 202/2008 OF FAMILY COURT, ``` ## **`PALAKKAD`** ## **`REVISION PETITIONER/S:`** ``` LEELADEVI, W/O.SUBRAHMANIAN VILAYODI AMSOM,NALLEPILLI, CHITTUR TALUK. BY ADV SRI.P.K.MOHANAN(PALAKKAD) ``` ## **`RESPONDENT/S:`** ``` SUBRAHAMANIAN, S/O NARAYANAN IST GRADE FITTER, KOCHIN SHIPYARD, ERNAKULAM DISTRICT. BY ADVS. SRI.LAKSHMEESH.S.KAMATH SRI.N.N.SUGUNAPALAN SR. SRI.S.SUJIN ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.207 of 2010 ## **C.S DIAS,J.** ## **--------------------------R.P (FC) No.207 of 2010** **----------------------------Dated this the 28[th] day of November, 2023** ## **O R D E R** The revision petition is filed aggrieved by the quantum of maintenance fixed by the Family Court, Palakkad in M.C.No.202/2008 @ Rs.1500/- per month. The revision petitioner was the petitioner and the respondent was the respondent before the Family Court. ## **Brief facts:** 2. The revision petitioner had filed the application under Section 127 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), seeking 3 R.P (FC) No.207 of 2010 enhancement of the monthly maintenance allowance from Rs.700/- to Rs.4000/-. It was her case that she was the divorced wife of the respondent. She had filed MC 82/1998 against the respondent for an order of maintenance under Sec.125 of the Code. The application was allowed by ordering the respondent to pay the revision petitioner monthly maintenance @ Rs.300/-. Subsequently, by the order in MC 77/2003, the maintenance allowance was enhanced to Rs.700/-. Alleging there was a change of circumstance, the petitioner filed the present application for enhancement of maintenance from Rs.700 to Rs.4000/-. The revision petitioner alleged that the respondent was working in the Cochin Shipyard and was drawing a monthly salary of Rs. 22,000/-, he possessed 3½ acres of agricultural 4 R.P (FC) No.207 of 2010 property, 2½ acres of garden land and was earning an agricultural income of Rs.1,00,000/- per annum. Hence, she is entitled for enhanced maintenance. 3. The respondent resisted the application by contending that the enhancement sought for by the revision petitioner was exorbitant and excessive. It was his defence that the revision petitioner was being maintained by her daughter, who is a Nurse and was employed abroad. The revision petitioner owns three acres of agricultural property and her father transferred one acre of garden land in her favour, and she is earning income from the properties. He further contended that their marriage was dissolved by the decree in O.S No.326/1987 and confirmed in A.S 5/1989. The respondent has remarried and has three 5 R.P (FC) No.207 of 2010 children in his present marriage. He is only drawing a monthly salary of Rs.4,000/-. Hence, the application may be dismissed. 4. The revision petitioner was examined as PW1 and Ext.P1 was proved through her. The respondent examined himself as RW1 and marked Ext.D1 in evidence. The salary certificate of the respondent was marked as Ext.X1. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application by directing the respondent to pay the revision petitioner the monthly maintenance @ Rs.1500/-. 6. Aggrieved by the inadequacy of maintenance; the revision petition is filed. 6 R.P (FC) No.207 of 2010 7. Heard; Sri.P.K.Mohanan, the learned counsel appearing for the revision petitioner and Sri.S.Sujin, the learned counsel appearing for the respondent. 8. Is there or any illegality, impropriety irregularity in the impugned order? 9. The attention of this Court is drawn to the order dated 3.4.2019 passed by this Court in R.P (FC) No.105/2017. The said revision petition was also filed by the revision petitioner challenging the order passed by the Family Court in MC 17/2015, cancelling the order passed in the present application i.e., M.C No.202/2008, on the application filed by the respondent under Sec.127 of the Code. This Court, after reconsidering the matter, partly allowed the revision petition by setting aside the order of the Family Court 7 R.P (FC) No.207 of 2010 and directing the respondent to pay the revision petitioner monthly maintenance allowance @ Rs.700/with effect from 21.1.2015. This Court specifically observed that the said order would not stand in the way of this Court considering the present revision petition filed by the revision petitioner seeking enhancement of maintenance allowance for the period between 19.6.2008 and 21.1.2015. 10. The revision petitioner’s right to be maintained by the respondent has a long chequered history. 11. Initially, the revision petitioner had filed M.C 82/1998 before the Court of the Judicial Magistrate of First Class, Chittur, under Sec.125 of the Code, for monthly maintenance allowance from the respondent. 8 R.P (FC) No.207 of 2010 The application was allowed, by directing the respondent to pay the revision petitioner the monthly maintenance allowance @ Rs.300/-. 12. Subsequently, the revision petitioner filed MC 77/2003, under Sec.127 of the Code, for enhancement of maintenance allowance. The above application was also partly allowed, directing the respondent to pay the revision petitioner the monthly maintenance allowance @ Rs.700/-. 13. Then, the revision petitioner filed the present application (MC No.202/2008) again for enhancement of monthly maintenance allowance from Rs.700/- to Rs.4,000/-. 14. The Family Court, by the impugned order, partly allowed the application by directing the 9 R.P (FC) No.207 of 2010 respondent to pay the monthly maintenance allowance to the revision petitioner @ Rs.1,500/- from the date of petition. 15. Dissatisfied with the quantum of maintenance, the revision petition is filed. 16. During the pendency of this revision petition, the respondent filed MC No.17/2015, under Sec.127 of the Code, to cancel the order in M.C 202/2008. The Family Court allowed the application and cancelled the order in M.C 202/2008. 17. Aggrieved by the said order, the revision petitioner filed RP(FC) No.105/2017 before this Court. By order dated 3.4.2019, this Court partly allowed the revision petition by holding that the respondent was liable to maintain the revision petitioner @ Rs.700/- 10 R.P (FC) No.207 of 2010 per month from the date of filing of MC No.17/2015, i.e., from 21.1.2015. 18. Therefore, the question that arises for consideration in the revision petition is whether the revision petitioner is entitled to enhancement of maintenance allowance from the date of application in MC 202/2008, i.e., 19.6.2008 till the date of order in MC No.17/2015, i.e., 21.1.2015. 19. The revision petitioner’s case in the application was that the respondent was working in the Cochin Shipyard and was earning Rs.22,000/- per month. He also owns 3.5 acres of agricultural property and 2.5 acres of garden land, and was earning Rs.1,00,000/- per annum. 11 R.P (FC) No.207 of 2010 20. The respondent’s defence in the application was that the revision petitioner also owns agricultural and garden land and was earning income from the properties. Furthermore, the respondent has remarried and has three children in his present marriage. He is only drawing Rs.4,000/- per month. 21. In order to prove the assertions in the application, the revision petitioner summoned and marked Ext X1 salary certificate of the respondent, dated 13.4.2009, issued by the Assistant Manager(Finance), Cochin Shipyard Ltd, which substantiates that the respondent was earning a gross monthly salary of Rs.26,277.96. However, as per the said salary certificate, the respondent, after deductions, was earning only a net salary of Rs.3,186.22 per month. 12 R.P (FC) No.207 of 2010 Ext X1 salary certificate was issued in the month of March where the professional tax and income tax were also deducted from the salary of the respondent. 22. The Family Court entered a finding that the respondent was drawing a pretty good income to maintain the revision petitioner. Nonetheless, the Family Court held since the revision petitioner failed to challenge the order in M.C No.77/2003 even after four years, Rs.1,500/- was sufficient for her maintenance. 23. 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 13 R.P (FC) No.207 of 2010 financial support, so as to prevent them from falling into destitution and vagrancy. 24. 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. 25. 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 14 R.P (FC) No.207 of 2010 sustain herself and the children, since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children. 26. The law is also well settled that a wife/divorced wife is entitled to live in the same status and standard living as that of the husband/divorced husband. 27. It may be true that the marriage of the revision petitioner and the respondent was dissolved by a decree of divorce passed by the civil court. Nonetheless, the respondent does not have a case that the revision petitioner has remarried or that she is disentitled to maintenance allowance on any other ground. 15 R.P (FC) No.207 of 2010 28. It is after four years, the revision petitioner filed the present application for enhancement of maintenance allowance. It is also true that the respondent has remarried and has three children in the present marriage. But, the same will not exonerate him from maintaining his divorced wife in his same status and standard of living. 29. Taking into consideration the fact that the respondent was working in the Cochin Shipyard from 6.5.1980 and was earning a gross salary of Rs.26,277.96/- and the Family Court itself has found that the deductions in the month of March, 2009 was on the inflated side due to payment of income tax and professional tax, I am of the view that the revision petitioner is entitled to a reasonable amount as 16 R.P (FC) No.207 of 2010 enhancement of maintenance. Moreover, in the light of the order in RP(FC) No.105/2017, the revision petitioner is entitled for enhanced maintenance only for a period between 19.6.2008 to 21.1.2015. Thus, I am of the definite view that the revision petitioner is entitled to enhanced maintenance allowance @ Rs.1,000/- per month for the above period, which would do complete justice to both sides. 30. In the result, - (i) The revision petition is partly allowed. (ii) The order in MC No.202/2008 is modified by enhancing the maintenance allowance from Rs.1,500/to Rs.2,500/- for the period between 19.6.2008 to 21.1.2015. 17 R.P (FC) No.207 of 2010 (iii) The respondent shall pay the arrears of maintenance for the above said period in three equated monthly instalments falling on 28.1.2024, 28.2.2024 and 28.3.2024. (iv) If the respondent fails to pay the above amount, the revision petitioner would be at liberty to execute the impugned order. sd/- sks/28.11.2023 **C.S.DIAS, JUDGE**