Muhammadali v. Sabira and Misiriya Minor (RP(FC) No.171 of 2014)

1 RP(FC) No.171 of 2014 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 RPFC NO. 171 OF 2014 AGAINST THE ORDER/JUDGMENT MC 227/2012 OF FAMILY COURT, ``` ## **`IRINJALAKUDA`** ## **`REVISION PETITIONER/S:`** ``` MUHAMMADALI AGED 43 YEARS S/O.MURITHARAVEETIL KADARKUNJI, PERINJANAN VILLAGE, EASTERN SIDE OF PERINJANAM MOONNUPEEDIKA, KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.K.MANOMOHANAN SRI.N.A.GANAPATI ``` ## **`RESPONDENT/S:`** ``` 1SABIRA W/O.MOORITHARA VEETIL MUHAMMADALI, PERINJANAM VILLAGE, EASTERN SIDE OF PERINJANAM MOONNUPEEDIKA, THRISSUR DISTRICT. 2MISIRIYA MINOR (D/O.MUHAMMADALI, THE REVISION PETITION AND RESPONDENT NO.1), PERINJANANAM VILLAGE, EASTERN SIDE OF PERINJANAM MOONNUPEEDIKA, THRISSUR DISTRICT.(MINOR REPRESENTED BY R1 GUARDIAN/MOTHER ) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 RP(FC) No.171 of 2014 ## **C.S DIAS,J.** **--------------------------RP(FC) No.171 of 2014** **----------------------------Dated this the 13[th] day of November, 2023** ## **ORDER** The revision petition is filed challenging the order in M.C No.227/2012 of the Family Court, Irinjalakkuda, ordering the revision petitioner to pay the respondents – his wife and child - monthly maintenance allowance @ Rs.3500/- and Rs.2,500/-, respectively, from the date of petition. The revision petitioner was the respondent and the respondents were the petitioners in the above application. ## **Brief facts** 2. The respondents had filed the application under Sec.125 of the Code of Criminal Procedure (in short, 3 RP(FC) No.171 of 2014 ‘Code’), claiming monthly maintenance allowance from the revision petitioner. It was their case that the first respondent was married to the revision petitioner on 3.3.2007 and the second respondent was born in the wedlock. The revision petitioner and his family members used to torture the first respondent demanding more dowry. On 17.5.2010, the revision petitioner manhandled the first respondent and drove her away from the matrimonial home. Thereafter, he has refused to maintain the respondents. The respondents do not have any source of income to maintain themselves. The revision petitioner is a merchant and is earning a monthly income of Rs.20,000/-. He is also doing real estate business. The respondents require monthly 4 RP(FC) No.171 of 2014 maintenance allowance as stated above. Hence, the application. 3. The revision petitioner filed a written objection denying the allegations in the application. It was his defence that the first respondent deserted him without any sufficient cause, who always desired to live in her parental home. The revision petitioner does not have any means to maintain the respondents. Hence, the application may be dismissed. 4. The first respondent also filed OP No.414/2012, before the same Court, as against the revision petitioner and his mother for a decree for realisation of gold ornaments. 5. The Family Court consolidated and jointly tried the two proceedings. The first respondent got herself 5 RP(FC) No.171 of 2014 examined as PW1 and marked Exts A1 series in evidence on her side. The revision petitioner got himself examined as RW1 and marked Exts B1 to B10 in evidence. 6. The Family Court, after analysing the pleadings and materials on record, by the common order, partly allowed the application, by directing the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.3,500/- and Rs.2,500/-, respectively. The first respondent's petition for return of gold ornaments was dismissed. 7. It is assailing the impugned order; the present revision petition is filed. 6 RP(FC) No.171 of 2014 8. Heard; Sri.P.K Manomohanan, the learned counsel for the revision on appearing petitioner admission. 9. Even though the revision petition was filed as early as on 23.4.2014, this Court has not admitted the same but only ordered notice before admission to the respondents. However, notice has not been served and the revision petitioner has not taken fresh steps to effect notice on the respondents. In the above background, this Court decided to consider the question whether the revision petition is to be admitted or not. 10. The revision petitioner has admitted his marriage with the first respondent and the paternity of the second respondent. 7 RP(FC) No.171 of 2014 11. It is his defence that the first respondent is living separately from him without any sufficient cause. Indisputably, neither has the revision petitioner taken any steps to resume cohabitation with the first respondent nor has he filed any petition for a decree for restitution of conjugal rights. 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 8 RP(FC) No.171 of 2014 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 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 9 RP(FC) No.171 of 2014 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, an able bodied person is bound to maintain his wife and children and also Courts are permitted to do some guesswork to arrive at the quantum of maintenance. 16. The first respondent’s case is that the revision petitioner is a merchant and is earning a monthly income of Rs.20,000/-. 17. Although the revision petitioner contended that the respondents have means to maintain themselves, he has not produced any material to prove his assertion. Taking into account the fact that the revision petitioner was aged 43 at the time of filing the application, he is deemed to be an able-bodied person whose notional 10 RP(FC) No.171 of 2014 monthly income is fixed @ Rs.25,000/- per month. Therefore, the order directing the revision petitioner to pay the respondents Rs.6,000/- per mensum is only reasonable and justifiable. 18. After bestowing my anxious consideration to the pleadings and materials on record, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court under Sec.19(4) of the Family Courts Act, 1964. The revision petition is devoid of any merits. Resultantly, the revision petition is dismissed at the threshold. SD/- sks/10.11.2023 **C.S.DIAS, JUDGE**