Moideen Koya v. Nadira K.M. & Ors.

## `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. 329 OF 2016` ``` AGAINST THE ORDER DATED 12.08.2015 IN MC 138/2013 OF FAMILY COURT, ``` ## `KOZHIKODE` ## `REVISION PETITIONER/RESPONDENT:` ``` 1MOIDEEN KOYA S/O. ISMAIL, MANCHAPARAKKAL HOUSE,VELLAYIKODE, PERUMANNA P.O.,PERUMANNA AMSOM DESOM, KOZHIKODE TALUK, PIN - 673 019. BY ADV SRI.O.D.SIVADAS ``` ## `RESPONDENTS/PETITIONERS:` ``` 1NADIRA K.M. D/O. NAZER, KOZHISSERY HOUSE,PARAMMAL, PERUMANNA P.O., PERUMANNA AMSOM DESOM,KOZHIKODE TALUK - 673 019. 2MINAF K.M S/O. NADIRA, KOZHISSERY HOUSE,PARAMMAL, PERUMANNA P.O.,PERUMANNA AMSOM DESOM,, KOZHIKODE TALUK - 673 019. 3ABDUL MALIK M.P S/O. NADIRA, KOZHISSERY HOUSE,PARAMMAL, PERUMANNA P.O.,PERUMANNA AMSOM DESOM, KOZHIKODE TALUK - 673 019. (MINORS 2 AND 3 ARE REPRESENTED BY 1ST RESPONDENT GUARDIAN MOTHER). BY ADVS. SRI.P.C.ANIL KUMAR SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.M.V.VIPINDAS ``` ``` 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.329 of 2016 ``` ``` 2 ``` ## **C. S. DIAS, J.** **--------------------------------------R.P.(F.C.) No.329 of 2016 --------------------------------------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.138/2013 of the Family Court, Kozhikode, ordering the revision petitioner to pay the respondents – his wife and two children - monthly maintenance allowance @ Rs.3,000/- to the first respondent and Rs.2,000/- each to the respondents 2 and 3 from the date of application (05.06.2013). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **The facts in brief:** 2. The respondent had filed the application under Section 125 of the Code of Criminal ``` R.P.(F.C.) No.329 of 2016 ``` ``` 3 ``` Procedure (in short, “Code”), seeking monthly maintenance allowance from the revision petitioner. It was their case that the first respondent is the wife of the revision petitioner and the respondents 2 and 3 were the children in their wedlock. The revision petitioner has refused to maintain the respondents since 08.09.2012. The revision petitioner was doing business in the sale of broiler chickens and in real estate, and was earning a monthly income of Rs.1,50,000/-. He also secured a loan by mortgaging the properties of the first respondent. Subsequently, he fraudulently transferred the properties to his brother. The respondents do not have the means to maintain themselves. Hence, the application. 3. The revision petitioner filed a written objection denying the allegations in the application. However, he admitted the marriage and the paternity of the respondents 2 and 3. He ``` R.P.(F.C.) No.329 of 2016 ``` ``` 4 ``` contended that the first respondent was working in a Private and was Company earning Rs.12,000/- per month. She was earning a rental income of Rs.5,000/- per month. The revision petitioner’s business in broiler chickens ran into loss and was closed down. The revision petitioner does not have any means to even maintain himself. Hence, the application may be dismissed. 4. The first respondent was examined as PW1 and Ext.A1 was marked through her in evidence. The revision petitioner was examined as RW1. 5. The Family Court, after analysing the pleadings and materials placed on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay maintenance to the respondents as already observed above. ``` R.P.(F.C.) No.329 of 2016 ``` ``` 5 ``` 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri.O.D.Sivadas, the learned counsel appearing for the revision petitioner and Sri.C.V.Manu Vilsan, the learned counsel appearing for the respondents on admission. 8. Is there any illegality, impropriety or irregularity in the impugned order? 9. The respondents’ case in the application was that although the revision petitioner had sufficient means to maintain them, he has refused to maintain. The revision petitioner is earning Rs.1,50,000/- from his business. 10. The revision petitioner’s defence was that the first respondent was earning a monthly income of Rs.17,000/- from her employment and as rent. His business ran into loss and has been closed down. Hence, he is not in a position to maintain the respondents . ``` R.P.(F.C.) No.329 of 2016 ``` ``` 6 ``` 11. 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. 12. 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. 13. 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 ``` 7 ``` ``` R.P.(F.C.) No.329 of 2016 ``` 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. 14. It is well settled in a plethora of judgments that the Courts are permitted to do some guesswork in arriving at the notional income of the husband/father and fixing the quantum of maintenance. 15. Although the revision petitioner contended that the first respondent is earning monthly income of Rs.17,000/-, there is absolutely no material on record to prove the said allegation. The revision petitioner’s main defence was that his ``` R.P.(F.C.) No.329 of 2016 ``` ``` 8 ``` business ran into loss and has been closed down. 16. It is also settled that an able-bodied person is bound to maintain his wife and children. 17. The revision petitioner was aged 33 years at the time of filing application. There is no material to prove that the revision petitioner is suffering from any ailments. Hence, he is assumed to be an able-bodied person. By any stretch of imagination, in the year 2013, a daily labourer would have earned atleast Rs.25,000/- per month. 18. Viewed in the above background, I hold that the direction to the revision petitioner to pay Rs.7,000/- per month to the respondents as monthly maintenance is only reasonable and justifiable. 19. After bestowing my anxious consideration to the pleadings and materials on record, I do not find any valid reason or ground warranting interference by this Court under Section 19(4) of ``` R.P.(F.C.) No.329 of 2016 ``` ``` 9 ``` the Family Courts Act, 1984. The revision petition does not warrant to be admitted and is liable to be dismissed at the threshold. Resultantly, the revision petition is dismissed in limine. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders passed by this Court and the Family 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