High Court of KeralaSingle JudgeDismissed

Musthafa E v. Raihanath T.P and Riqva S/o Musthafa (minor) represented by Raihanath T.P.

Case / Petition Number:RPFC NO. 343 OF 2016

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2023-12-04
Court Decision / Holding
Revision petition dismissed. The High Court sustains the Family Court’s maintenance order directing Rs.4,000 per month to the first respondent and Rs.3,000 per month to the second respondent from the date of petition. If any interim deposits were made, they may be adjusted against the balance payable as per the impugned order. The petitioner may seek relief under Section 127 CrPC if factual circumstances (such as majority of the minor or new employment) change.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Musthafa E

Respondents

  • Raihanath T.P.
  • Riqva S/o Musthafa (minor) represented by Raihanath T.P.

Legal Representation & Advocates

Counsels for Petitioners

  • • K. Rajesh Sukumar an?d Abdul Raoof Pallipath
  • • K.R. Avinash (Kunnath)
  • • Raj Carolin V.

Counsels for Respondents

  • • Nidhi Balachandran
  • • Sabu George

Case Synopsis & Summary

This Kerala High Court revision petition (RPFC No. 343 of 2016) challenges the Family Court, Kannur’s order in MC No.165/2014 (dated 31.03.2016) directing maintenance under Section 125 CrPC to the wife, Raihanath T.P., and to the minor child, Riqva S/o Musthafa. The Family Court consolidated the petitions and assessed both the wife’s and child’s maintenance, finding the revision petitioner financially capable and fixing a notional income that supported maintenance obligations. The revision petitioner argued that the second respondent had attained majority and is employed abroad, while the first respondent has also moved abroad; he contended that his own income is modest (coolie worker) and that the wife runs a catering business. He urged a re-evaluation of the quantum, and questioned the reliance on notional income. The respondents argued there was no illegality in the impugned order and that maintenance is a social justice obligation to protect wives and children. The High Court, while citing Supreme Court precedents on social justice and notional income (Rajnesh v. Neha and Anr.; Captain Ramesh Chander Kaushal v. Veena Kaushal; Bhuwan Mohan Singh v. Meena), upheld the Family Court’s order and dismissed the revision petition. It also noted that the petitioner may invoke Section 127 CrPC if circumstances change (e.g., majority of the child or new employment).

Provisions of Law Cited

CrPC Section 125Family Courts Act, 1984 Section 19(4)Code Section 127Constitution of India Articles 15(3)Constitution of India Article 39

Legal Doctrines & Maxims

  • Maintenance is a measure of social justice
  • Sacrosanct duty of the husband to provide financial support to wife and children
  • Courts may determine notional income for maintenance
  • Social justice/protection of women and children under the Constitution

Submissions & Arguments

Contentions of Appellants / Petitioners

Musthafa E submits that the second respondent has attained majority and is abroad; the first respondent has also moved abroad; the petitioner is a coolie with limited income and contends the Family Court erred in fixing notional income around Rs.25,000 per month and in relying on the wife’s catering business as sufficient basis for maintenance. He contends the maintenance quantum is excessive, not supported by reliable material, and requires re-evaluation or reduction. He emphasizes that the wife’s and child’s dependencies should be realigned to reflect his actual earning capacity and circumstances.

Contentions of Respondents

The respondents contend there is no illegality in the impugned order and that maintenance under Sec.125 CrPC is a social justice measure owed to the wife and minor child. They argue the petitioner earns more than claimed (e.g., fish trade business), and that the notional income methodology and the quantum decided by the Family Court are justified by established jurisprudence. They highlight the wife’s contribution via catering work and assert the petitioner’s duty to maintain cannot be negated by his claimed limitation in income.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Rajnesh v. Neha and Anr.2020 (6) KHC 1PositiveCited to support that maintenance laws are a measure of social justice aimed at preventing destitution of dependants, and to justify the use of notional income in determining quantum.
Captain Ramesh Chander Kaushal v. Veena Kaushal & Ors.(1978) 4 SCC 70PositiveCited to explain that maintenance is a social justice measure protecting women and children under constitutional principles.
Bhuwan Mohan Singh v. Meena & Ors.(2015) 6 SCC 353PositiveCited to emphasize that Sec 125 CrPC is designed to ameliorate the financial suffering of wife and children and that a husband has a duty to provide support.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945** ## **RPFC NO. 343 OF 2016** **AGAINST THE JUDGMENT IN MC NO.165/2014 DATED 31.03.2016 OF FAMILY** ## **COURT, KANNUR** ## **REVISION PETITIONER/RESPONDENT:** **MUSTHAFA.E AGED 42 YEARS S/O. ABDULLA, NOORUL HUDAH, NEAR KARARINAKAM BANK,P.O. KADALAYI, EDAKKAD AMSOM,KADALAYI DESOM, KANNUR - 670 007.** **BY ADVS. SRI.K.RAJESH SUKUMARAN ABDUL RAOOF PALLIPATH K.R.AVINASH (KUNNATH)(K/1364/2003) RAJ CAROLIN V.(K/001117/2018)** ## **RESPONDENTS/PETITIONERS:** **1 RAIHANATH.T.P D/O. MUHAMMED ALI, AGED 39 YEARS,SABNOOR QUARTERS, ANDATHODE,P.O. CHOVVA, KANNUR AMSOM DESOM,KANNUR -670 001.** - **2 RIQVA S/O. MUSTHAFA, AGED 12 YEARS, MINOR,REPRESENTED BY MOTHER AND GUARDIANIST PETITIONER, RAIHANATH T.P.** **BY ADVS. SRI.NIDHI BALACHANDRAN SRI.SABU GEORGE** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION** **ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RPFC NO. 343 OF 2016** **2** ## **O R D E R** The revision petition was filed questioning the legality and correctness of the order in M.C No.165/2014 of the Family Court, Kannur, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.4,000/- to the first respondent and Rs.3,000/- to the second respondent from the date of petition. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. 2. The respondents had filed the application under Sec.125 of the Code of Criminal Procedure (in short, “Code”), seeking monthly maintenance allowance from the revision petitioner. It was their case that, the 1[st] respondent is the wife of the revision petitioner and the 2[nd] respondent was born in their wedlock. The revision petitioner had brutally assaulted the 1[st] respondent and was maintaining another relationship. He drew away the 1[st] respondent from the matrimonial home and, thereafter, **RPFC NO. 343 OF 2016** **3** he has refused to maintain the respondents. The revision petitioner is trading in fish and has several lorries, and is earning a monthly income of Rs.5/- lakh. Hence, the application. 3. The revision petitioner filed a written objection denying the assertions in the application. He contended that he was only a coolie worker and had no permanent income. The 1[st] respondent was a cook and was conducting catering service, and she was earning Rs.20,000/- per month. The amount of maintenance claimed by the respondents was excessive and exorbitant. Hence, the application may be dismissed. 4. The respondents had also filed OP No.336/2014 before the same court against the revision petitioner, for a decree for past maintenance. 5. The Family Court consolidated and jointly tried both the applications. **RPFC NO. 343 OF 2016** **4** 6. The respondents were examined as PW1 and PW2 and Exts.A1 and A2 were marked in evidence. The revision petitioner got himself and a witness examined as RW1 and RW2. Ext.X1 - copy of the Marriage Register – was also in evidence. 7. The Family Court, after appreciating the pleadings and materials placed on record, by impugned order, partly allowed the application by directing the revision petitioner to pay the respondents monthly maintenance allowance as already observe above. 8. It is assailing the said order; the revision petition is filed. 9. Heard; Sri.Abdul Raoof, learned counsel appearing for the revision petitioner and Smt.Nidhi Balachandran, the learned counsel appearing for the respondents. 10. The learned counsel for the revision petitioner vehemently argued that the 2[nd] respondent has already **RPFC NO. 343 OF 2016** **5** attained majority and is presently employed in Gulf. The 1[st] respondent has joined her son abroad. Moreover, the 1[st] respondent is an expert cook and was running her own catering business. The Family Court has failed to appreciate the above aspects and passed the impugned order. The revision petition is only to be allowed. 11. The learned counsel appearing for respondents defended the impugned order and submitted that there is no merit in the revision petition. 12. Is there any illegality, impropriety or irregularity in the impugned order? 13. The revision petitioner admits his marriage with the 1[st] respondent and the paternity of the 2[nd] respondent. 14. The respondents case was that, the revision petitioner had driven away the first respondent from the matrimonial home and has thereafter refused to maintain them. Although, the revision petitioner is earning more **RPFC NO. 343 OF 2016** **6** than Rs.5/- lakh per month from his business, he has refused to maintain them. 15. The revision petitioner's defence was that he is presently a coolie worker and is having an income of less than Rs.10,000/-. The 1[st] respondent is a cook and running a catering services, and she is earning Rs.20,000/- per month. Therefore, the revision petitioner is not liable to maintain the respondents. 16. 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. 17. 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 **RPFC NO. 343 OF 2016** **7** enacted to protect women and children, who fall within the constitutional sweep of Article 15(3) and reinforced by Article 39. 18. 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 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. 19. 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. **RPFC NO. 343 OF 2016** **8** 20. On an analysis of the pleadings and materials on record it is seen that though the revision petition has contended that the 1[st] respondent is working as a cook and she is conducting catering services, there is no material to prove the said allegation. 21. On the contrary, the respondents case is that the revision petitioner is doing business in trade of fish, which has been denied by the revision petitioner contending that he is only a daily labourer and is earning a monthly income of Rs.10,000/-. 22. The revision petitioner was aged 42 years at the time of filing the application in 2014. There is no material to prove that he is suffering from any ailment. By any stretch of imagination, a daily labourer in the year 2014 would have earned Rs.1,000/- per day for 25 days in a month. Therefore, the revision petitioner's notional income can easily be fixed at Rs.25,000/- per month. 23. On an overall consideration of the pleadings and materials on record and the law on the point, I do not find **RPFC NO. 343 OF 2016** **9** any illegality, impropriety or irregularity in the impugned order warranting interference by this Court by exercising its revisional powers under Section 19(4) of the Family Courts Act, 1984. If at all the revision petitioner has a case that the 1[st] respondent has subsequently secured any employment or the 2[nd] respondent has attaining majority, he would be at liberty to invoke his statutory right under Section 127 of the Code. The revision petition is devoid of any 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(J) JUDGE** lsn