Manoj A.K v. Sindhu and Others

## `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. 33 OF 2015` ``` AGAINST THE ORDER DATED 07.11.2014 IN MC 191/2013 OF FAMILY COURT,THRISSUR ``` ## `REVISION PETITIONER/RESPONDENT:` ``` MANOJ A.K, AGED 46 YEARS, S/O.KRISHNANKUTTY, ATHANIKKUZHI HOUSE, P.O.MARATHAKKARA, THOTTAPADY DESOM, THRISSUR-680306 ``` ``` BY ADVS.SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE ``` ## `RESPONDENTS/PETITIONERS & STATE:` ``` 1SINDHU, AGED 39 YEARS, D/O.PARAMESWARAN, KATIHAVALAPPIL HOUSE, VELLANI P.O., IRINJALAKUDA, THRISSUR-680701 2AMALDEV, AGED 16 YEARS,MINOR, REPRESENTED BY MOTHER AND GUARDIAN, THE 1ST RESPONDENT 3ARYANANDA, AGED 9YEARS,MINOR, REPRESENTED BY MOTHER AND GUARDIAN, THE 1ST RESPONDENT 4STATE OF OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SRI.C.A.CHACKO THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.33/2015 -:2:- Dated this the 28[th] day of November,2023 ## **O R D E R** The revision petition is filed under Section 19(4) of the Family Courts, Act, 1984, assailing the legality and correctness of the order in M.C.No.191/2013 of the Family Court, Thrissur, ordering the revision petitioner to pay monthly maintenance allowance to the first respondent – his divorced wife – @ Rs.2,000/- and to the respondents 2 & 3 – his children – @ Rs.1,500/each from the date of application. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts:** 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), for separate monthly maintenance allowance @ Rs.3,000/- R.P.(FC)No.33/2015 -:3:- to the first respondent and Rs.2,500/- each to the respondents 2 & 3. It was their case that the first respondent and the revision petitioner were married on 19.10.1994. The respondents 2 & 3 were born in the wedlock on 13.05.1998 & 01.07.2004, respectively. Due to the continuous harassment meted out on the first respondent by the revision petitioner, she was constrained to leave the matrimonial home. Subsequently, the revision petitioner and the first respondent filed O.P.No.1795/2011, under Section 13B of the Hindu Marriage Act, 1955(‘Act’, for the sake of brevity), before the same Family Court to dissolve their marriage on mutual consent. It was agreed between the parties that a jointly owned property would be sold and the respondents would be paid Rs.25,00,000/towards their future maintenance. However, the revision petitioner paid only Rs.5,00,000/-. The revision petitioner is doing painting contract and is R.P.(FC)No.33/2015 -:4:- earning Rs.25,000/- per month. The respondents do not have any source of income. Hence, the application. 3. The revision petitioner had filed a written objection refuting the allegations in the application. He admitted the marriage and the paternity of the children. He denied that there was a joint property. He also denied that he agreed to pay Rs.25,00,000/- to the respondents as ‘future maintenance’. It was his defence that the property was purchased with his own funds. The first respondent had forged his signature and secured a loan from the Life Insurance Corporation. She sold the property without his knowledge. The revision petitioner had agreed to pay the first respondent Rs.5,00,000/- and he paid Rs.2,00,000/- to the first respondent and Rs.1,50,000/each to the respondents 2 & 3 at the time of filing the joint petition. The first respondent is employed as a saleswoman and is earning Rs.10,000/- per month. R.P.(FC)No.33/2015 -:5:- There is no bona fides in the application and the same may be dismissed. 4. In the trial, the respondent was examined as PW1 and Exts P1 to P7 were marked on her side. The revision petitioner was examined as RW1 and Exts D1 to D3 were marked on his side. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application as observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri. Joby Jacob Pulickekudy, the learned counsel appearing for the revision petitioner and Sri.C.A. Chacko, the learned counsel appearing for the respondents. 8. The learned counsel appearing for the petitioner vehemently argued that, since the revision R.P.(FC)No.33/2015 -:6:- petitioner and the first respondent were living separately on mutual consent even prior to the filing of the joint petition, the first respondent falls within the purview of Section 125(4) of the Code and is therefore disentitled to maintenance. However, he fairly submitted that the revision petitioner was not attacking the order granting maintenance allowance to the respondents 2 & 3 – his children. The learned counsel placed reliance on the decision in **Rakesh Malhotra v. Krishna Malhotra** [2020(2) KHC 25] to buttress his contention. 9. The learned counsel appearing for the respondents resisted the above submissions and defended the order by relying on the decisions of the Hon'ble Supreme Court in **Vanamala v. Ranganatha Bhatta** (1995(2)KLT 397) and **Gurmit Kaur v. Surjit Singh @ Jeet Singh** [1996 KHC 217] and the Division Bench decisions of this Court in **Balan v. Visalakshy** R.P.(FC)No.33/2015 -:7:- [1985 KLT 967] and **Rajesh R. Nair v. Meera Babu** [2013(1) KLT 899] to drive home the contention that a divorced wife does not fall within the realm of Section 125(4) of the Code. Even assuming that there was an agreement entered between the parties, the agreement is void, since it is hit by Section 23 of the Indian Contract Act,1872. He prayed that the revision petition may be dismissed. 10. Is there any illegality, impropriety or irregularity in the impugned order? 11. The revision petitioner admits his marriage with the first respondent and the paternity of the respondents 2 & 3. It is also not a disputed fact that the marriage between the revision petitioner and the first respondent was dissolved by a decree of divorce under Section 13B of the Act. Thus, on the date of consideration of the application for maintenance, the first respondent was the divorced wife of the revision R.P.(FC)No.33/2015 -:8:- petitioner. 12. The cardinal contention of the revision petitioner is that, even prior to filing of the joint application to dissolve the marriage on mutual consent, the revision petitioner and the first respondent were living separately on mutual consent. Therefore, even after the passing of the decree, the said state of affairs would continue, disentitling the first respondent from claiming maintenance. 13. I outrightly reject the above submission because Section 125(4) of the Code only speaks of the relationship between a husband and wife and, it is only during coverture if the couple is living separately on mutual consent, the above provision will stand attracted. 14. Interpreting the above provision, a Division Bench of this Court in **Balan** (supra) has held as under: R.P.(FC)No.33/2015 -:9:- **“6. It is difficult to comprehend that a wife who obtains divorce by mutual agreement is left out from the definition of "wife" as found in the aforesaid explanation. A wife who obtains divorce by mutual agreement does not fall under a different category.** By mutual agreement or by intervention of the court a wife can obtain divorce from her husband. Respondent's status as a divorced wife is not dependent upon the mode of divorce. The Code does not say that a divorced wife is not entitled to maintenance in case divorce has been obtained by mutual agreement. **7. It is true that S.125(4) says that a wife is not entitled to separate maintenance if she and her husband are living separately by mutual consent** . There may be cases where a wife and her husband live separately by mutual consent without obtaining divorce. Such a wife is not entitled to separate maintenance. **But that does not, however, mean that a divorced wife is not entitled to maintenance merely on the ground that she obtained her divorce by agreement.”** (emphasis given) 15. A reading of the ratio decidendi in the above precedent, leaves no room for any doubt that a divorced wife does not fall within the purview of Section 125(4) of the Code. 16. The above legal position has been confirmed by the Hon'ble Supreme Court in **Vanamala** (supra) that Section 125(4) does not apply to a divorced wife. The same view has been reiterated in **Gurmit Kaur** R.P.(FC)No.33/2015 -:10:- (supra). 17. Even assuming that there was an agreement between the parties, whereby the first respondent agreed to waive her right to claim maintenance, such agreement is unenforceable in law as it is hit by public policy. [Read **Rajesh R. Nair** (supra) and **Muhammed Siyad v. Jasna** [2021 (1) KHC 755]] Therefore, the said contention is also untenable. 18. In the case of **Rakesh Malhotra** (supra), which was relied on by the learned counsel for the revision petitioner, the Hon'ble Supreme Court held that a wife is estopped from filing an application under Section 125 of the Code, after receiving permanent alimony under Section 25 of the Act. 19. In the instant case, there is no order passed under Section 25 of the Act at the time of passing the decree in O.P.No.1795/2011. Hence, the decision in **Rakesh Malhotra** (supra) is not applicable to the R.P.(FC)No.33/2015 -:11:- present case. 20. Now coming to the question of quantum of maintenance. 21. Even though the revision petitioner had contended that the first respondent was working as a saleswoman and earning Rs.10,000/- per month, he did not produce any material to substantiate his assertions. At the time of cross-examination of the first respondent, she stated that she was having a temporary employment in the District Hospital as Watchman and was earning Rs.120/- per day. 22. In **Pradeep v. Sheeba** [2016 (1) KLT 479], this Court held that even if a wife is temporarily employed at the time of filing the application, the same cannot be taken as a ground to deny maintenance to her. 23. Similarly, in **Sunita Kachwaha and Others v. Anil Kachwaha** [2014 KHC 4690], the Hon'ble R.P.(FC)No.33/2015 -:12:- Supreme Court has held even though a woman is well qualified and is getting some income, the same cannot be treated as a ground to dis-entitle her from claiming maintenance. 24. In the light of the categoric declaration of law in the above judgments, I hold that there is no ground established to dis-entitle the first respondent from claiming maintenance. On the contrary, the revision petitioner has not produced any material to substantiate that he was suffering from any ailment. It is well-settled that an able bodied person is liable to do physical labour and maintain his wife and children. As the revision petitioner was aged 45 years at the time of the application, it is assumed that he is an able bodied person. 25. 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 R.P.(FC)No.33/2015 -:13:- 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. 26. 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, 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. 27. On an overall consideration of the pleadings R.P.(FC)No.33/2015 -:14:- and materials on record and the law on the point, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition sans substances or merits 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 amount, while paying the balance amount due, as per the impugned order. Sd/- ## **C.S.DIAS,JUDGE** DST/28.11.23 //True copy// P.A. To Judge