Minu Antony v. Shinta K.A. and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944** **RPFC NO. 272 OF 2022** **AGAINST THE ORDER IN MC NO.77/2012 OF FAMILY COURT,** ## **ERNAKULAM** ## **REVISION PETITIONER/RESPONDENT:** **MINU ANTONY, AGED 42 YEARS, S/O ANTONY, KALATHIL HOUSE, SOUTH CHITTOOR, CHERANELLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT, PIN - 682034 BY ADV P.M.UNNI NAMBOODIRI** ## **RESPONDENTS/PETITIONERS :** **1 SHINTA K.A., AGED 34 YEARS D/O. ANTONY, KOLERICKAL HOUSE, VARAPPUZHA P.O., MUTTINAKAM, PARAVUR TALAUK, ERNAKULAM DISTRICT, PIN - 683517 2 JOFIN, AGED 12 YEARS, MINOR, S/O. MINU ANTONY, REPRESENTED BY THE MOTHER AND NATURAL GUARDIAN SHINTA K. A., AGED 34 YEARS, D/O. ANTONY, KOLERICKAL HOUSE, VARAPPUZHA P.O., MUTTINAKAM, PARAVUR TALAUK,** **RO(FC)No.272 of 2022** -:2:- **ERNAKULAM DISTRICT, PIN - 683517** **3 MARIYA, AGED 13 YEARS, MINOR, S/O. MINU ANTONY, REPRESENTED BY THE MOTHER AND NATURAL GUARDIAN SHINTA K. A., AGED 34 YEARS, D/O. ANTONY, KOLERICKAL HOUSE, VARAPPUZHA P.O., MUTTINAKAM, PARAVUR TALAUK, ERNAKULAM DISTRICT, PIN – 683517** **BY ADVS. BENZIR P. M. ANJU JAHAFER(K/1012/2003)** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RO(FC)No.272 of 2022** -:3:- ## **O R D E R** This is a revision petition filed under Section 19(4) of the Family Court Act challenging order dated 19.02.2022 in M.C.No.77 of 2012 pending before the Family Court, Ernakulam. 2. Heard the matter on 10.10.2022. In order to clarify a doubt, posted for today. 3. Heard the learned counsel for the revision petitioner and Adv.Sri.P.M.Benzir, who appeared for the respondents. 4. It is submitted by the learned counsel for the revision petitioner that the petitioner is not having sufficient income to pay maintenance as per the order impugned and therefore, he is ready to pay maintenance at the rate of Rs.4,000/- to the children and he is not **RO(FC)No.272 of 2022** -:4:- liable to maintain the wife, since she is having income. 5. I have perused the order impugned. The respondents herein, the wife and minor children aged 2 years and 3 years during 2012, initiated proceedings under Section 125 of Code of Criminal Procedure before the Family Court against the revision petitioner alleging that the petitioners do not have any income to maintain themselves and on the submission of the respondent, who is the husband of the first petitioner and father of minor petitioners 2 and 3 is having sufficient income to maintain them. Accordingly, the matter was proceeded. 6. It is to be borne out from the order impugned that the revision petitioner filed objection before the Family Court stating that he was a painter by profession under a contractor and he did not get job on all days. He was getting only Rs.9,000/- per month. Therefore, he could not pay the amount of maintenance. **RO(FC)No.272 of 2022** -:5:- 7. The Family Court Judge adjudicated the matter and recorded evidence. PW1 examined and Exts.A1 series to A3 marked on the side of the petitioners and RW1 examined and B1 to B3 were marked on the side of the respondent. 8. The Family Court Judge appraised the matter and ultimately granted Rs.10,000/- to the first petitioner and Rs.7,500/- to the second petitioner and Rs.5,000 to the third petitioner. Now huge arrears are pending is the observation of the learned Family Court Judge. The Family Court Judge discussed the contention raised by the respondent in paragraph Nos. 9 and 10 of the order, while negativing the same on the finding that the revision petitioner is capable of maintaining the wife and children. Accordingly, the above amounts were granted. For clarity, observation in paragraph Nos.9 and 10 of the impugned order is extracted here under: **RO(FC)No.272 of 2022** -:6:- “9. Ext.B1 series are the trumpcards of RW1 to make out himself as a disabled person incapable of doing any work. Ext.B1 is the discharge summary dated 05.07.2008 issued from the Department of Orthopaedics, Lourde Hospital, Ernakulam with the clinical finding of fracture medial condyle of left tibia sustained as a result of fall from bike. It also shows percutaneous, cannulated screws to fix the fracture with 3 screws. He was advised not to bear weight for 6 weeks. This certificate is issued in the year 2008 with an advice for no weight bearing for six weeks. He is pleading much in the given case that he cannot attend any job because of the fracture sustained by him on his left tibia. Pertinent to see, he married PW1 in the year 2009 much after the so called motor bike accident. So it is clear that with the infirmity if at all it is there, he married PW1 and procreated two minor children through her in their wedlock. Here it is contextually significant to refer to the ruling of the Hon'ble High Court of Kerala in **Rafeeq v. Sumayya** [2015(5) KHC 633] where it is held that since the disability was subsisting at the time of marriage he was fully confident that he can maintain a family and thereafter no change of circumstance. In that case, the respondent concerned has produced a medical certificate that he is having 60% disability. The Hon'ble High Court considered the fact that no document has been produced to show that he has fully lost his earning capacity or he is totally incapable to do **RO(FC)No.272 of 2022** -:7:- any kind of work so as to earn livelihood for his family. It is further held in the said ruling that “ **It is a matter of common knowledge that physically challenged persons also can do some kind of work or do certain business so as to earn livelihood for his family and they can choose the nature of business and work or employment in accordance with their nature of disability and handicap. So physically challenged husband cannot be exempted from his statutory liability to maintain his wife and children under S.125 of the Cr.P.C., unless, it is found that subsequent to the marriage, he became totally incapable to do any kind of work or business to earn livelihood for his wife and children. No lenient view can be taken to him, particularly when the disability or handicap was subsisting at the time of marriage and birth of the child. On the other hand, if the percentage of physical disability or handicap occurs or increases after the marriage, the percentage of the loss of earning capacity can be proportionally considered for fixing the quantum of maintenance allowance”.** Here also RW1 has no case that his physical condition has got worsened subsequent to his marriage or the birth of the children. Ext.B1 series do not make out that he is incapable of doing any work or his earning capacity is lost because of the impact of the RTA referred to in the medical record. In appearance also **RO(FC)No.272 of 2022** -:8:- RW1 is a well built person, undoubtedly capable of carrying on jobs of any nature. 10. Ext.B2 is pressed into service to show that his monthly income is only Rs.10,500/- as driver in St.Thomas Nursery School Bus Perumanoor and he is on temporary service since 11.11.1990. Ext.B2 is dated 29.01.2020. Next contention raised by him is that PW1 is employed and therefore she is not legally entitled to get any amount from him. I have already observed what compelled PW1 to find out a job or her own. Once he neglected and deserted them, the mother and children became destitutes and it was a compelling situation for her to secure a job to groom her kids. The pathetic situation is that the order granting interim maintenance by this Court @ Rs.10,000/- to the first petitioner and Rs.7,500/- and Rs.5,000/- to the 2[nd] and 3[rd] petitioners in the instant case was challenged by him before the Hon'ble High Court. The quantum of maintenance was reduced by the Hon'ble High Court in OP(Crl)320/2016 to the tune of Rs.11,000/- altogether and directed him to clear off the arrears within one month from the date of order. Challenging the said order, he preferred a revision Crl.(RP)381/2017 and the same was dismissed by the Hon'ble High Court, then he moved the Hon'ble Supreme Court by filing a special leave petition and the same is also dismissed as evident from his own affidavit filed before the court. He testified that as per the direction of the Hon'ble High Court he **RO(FC)No.272 of 2022** -:9:- has deposited a sum of Rs.27,000/- towards the arrears of maintenance. Lakhs of amount is lying in arrears towards the interim maintenance, despite the specific directive of the Hon'ble High Court. From all these, it is clear that RW1 is always deliberately and willfully evading his liability to pay maintenance to his wife and children. Both parties have filed affidavit disclosing their assets and liabilities as per the mandate of the Hon'ble Apex Court in **Rejnesh v. Neha ILR** [2020(4) Kerala 579]. The fact that PW1 is doing a petty job does not dis-entitle her from getting maintenance from her husband. In a plithora of judicial pronouncements by the Hon'ble Supreme Court, it is well settled that even if the wife is earning, the husband is legally and morally bound to maintain her. Provision for maintenance under Section 125 of Cr.P.C. is to prevent vagrancy. The wife is also entitled for maintaining the very same living standard which she was enjoying while living with her husband. Here RW1 is an able bodied man and totally free from any sort of disability and therefore, he cannot wriggle out from the responsibility he is legally bound to discharge. It is spoken to by PW1 that their marital discord was also emerged because of the physical and mental abuses exerted by RW1 on PW1. So it stands proved that RW1 has never paid allegiance towards his responsibility as husband and children. Even if he secured an exparte decree of divorce against PW1, she is entitled to get maintenance from him till the date of her **RO(FC)No.272 of 2022** -:10:- remarriage. The children are equally entitled to be duly provided with reasonable maintenance from the respondent. None of the rival contentions set forth by him does succeed and he is found liable to pay maintenance to the petitioners 1 to 3. 9. In the said paragraphs, filing of O.P. (Crl.)No.320 of 2016 challenging grant of Rs.11,000/- as interim maintenance before this Court and thereafter, filing of Crl.(R.P.)No.381 of 2017 and the dismissal of the same by this Court were pointed out. Dismissal of special leave petition filed before the Honourable Supreme Court challenging the said order also was highlighted. 10. It is to be noted that Ext.B2 salary certificate produced by the revision petitioner showing his income at Rs.10,500/- was addressed by the Family Court Judge and the Family Court Judge was not inclined to accept the said income for valid reasons stated as extracted here above. **RO(FC)No.272 of 2022** -:11:- 11. As per the order impugned, the Family Court granted Rs.10,000/- to the first petitioner, Rs.7,500/- to the second petitioner and Rs.5,000/- to the third petitioner. 12. In this matter, the revision petitioner is having some ailment due to a motor accident occurred prior to the marriage. Admittedly, he has been doing private job. Therefore, I am of the view that some reduction in the quantum of compensation fixed by the Family Court is essential to afford the revision petitioner. 13. Having considered the said fact in tune with the contention raised by the revision petitioner, I am inclined to reduce the amount of maintenance insofar as the first respondent to Rs.7,000/- and Rs.6,500/- each to respondents 2 and 3. In the result, the revision petition stands allowed in part. **RO(FC)No.272 of 2022** -:12:- It is ordered that the revision petitioner shall pay maintenance at the rate of Rs.7,000/- per month to the first respondent and Rs.6,500/- each to respondents 2 and 3 respectively from the date of the original petition. He is directed to clear the arrears at the said rates without fail. Sd/- **A. BADHARUDEEN JUDGE** rkj **RO(FC)No.272 of 2022** -:13:- ## **APPENDIX OF RPFC 272/2022** **PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE SALARY CERTIFICATE ISSUED BY STAR ENTERPRISES DATED:04/10/2022**