N K P Faizal v. Sahalath VP and Anr.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945** **RPFC NO. 446 OF 2016** **AGAINST THE ORDER/JUDGMENT MC 96/2014 OF FAMILY COURT, KANNUR** ## **REVISION PETITIONER/S:** N K P FAIZAL AGED 35 YEARS, S/O.MAHAMOOD, THALAKKAL HOUSE, RAMANTHALI AMSOM, ETTIKKULAM DESOM, P.O.ETTIKULAM, KANNUR DISTRICT BY ADVS. SRI.O.V.MANIPRASAD SRI.JOSE ANTONY ## **RESPONDENT/S:** 1 SAHALATH V P AGED 32 YEARS, D/O.LATHEEF, AIMANAS MANZIL, NEAR SALAFI MASJID, VELLOOR AMSOM DESOM, VIA PAYYANNUR, KANNUR DISTRICT 2 DHIYA FAIZAL AGED 7 YEARS (MINOR) 3 FADI MUHAMMED FAIZAL AGED 6 YEARS (MINOR), RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER 1ST RESPONDENT SAHALATH VP, D/O.LATHEEF, AIMANAS MANZIL, NEAR SALAFI MASJID, VELLOOR AMSOM DESOM, VIA PAYYANNUR, KANNUR DISTRICT BY ADV SRI.M.SASINDRAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 446 OF 2016 2 ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C. No.96/2014 of the Family Court, Kannur, ordering the revision petitioner to pay the respondents – his wife and children – monthly maintenance allowance @ Rs.4,000/- to the 1[st] respondent, Rs.3,000/- to the 2[nd] respondent and Rs.2,500/- to the 3[rd] respondent from the date of petition (15.02.2014). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure (in short, “Code”) against the revision petitioner claiming monthly maintenance allowance. It was their case that, the revision petitioner got married to the 1[st] respondent on 25.11.2005 and the respondents 2 and 3 were born in their wedlock. The revision petitioner treated the 1[st] respondent with matrimonial cruelty. The revision petitioner had also misappropriated the 1[st] respondent's gold ornaments that were entrusted to him as her share in her parental RPFC NO. 446 OF 2016 3 properties. He also refused to maintain the respondents. Hence, the application. 3. The revision petitioner had filed a written objection denying the assertions in the application. He submitted that the 1[st] respondent is living separately from him without any sufficient cause. He had filed O.P.No.389/2013 before the same court, for a decree for restitution of conjugal rights. The revision petitioner does not have the means to maintain the respondents. Hence, the application may be dismissed. 4. The 1[st] respondent had also filed O.P. No.189/2014 against the revision petitioner for a decree of divorce and OP No.352/2014 for a decree for return of money and gold ornaments. The Family Court, consolidated and jointly tried the four proceedings. In the trial, the 1[st] respondent and two witnesses were examined as PWs 1 to 3 and Exts.A1 to A6 were marked on their side. The revision petitioner was examined as RW1 and Exts.P1 to P2(e) were marked on his side. Exts.B1 to B2(e) were marked and summoned in evidence. RPFC NO. 446 OF 2016 4 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application as already observed above. 6. It is assailing the common judgment allowing M.C. No.96/2014; the revision petition is filed. 7. Heard; Sri.O.V.Maniprasad, the learned Counsel appearing for the revision petitioner and Sri.M.Sasindran, the learned Counsel appearing for the respondents. 8. The learned Counsel appearing for the revision petitioner submits that subsequent to the passing of the impugned order, the 1[st] respondent has secured a permanent employment. Therefore, the order warrants interference by this Court. 9. Is there any illegality, impropriety or irregularity in the impugned order. 10. The revision petitioner admits his marriage with the 1[st] respondent. He also does not dispute the paternity of respondents 2 and 3. 11. The respondents' case in the application was that despite the revision petitioner being an able bodied person, RPFC NO. 446 OF 2016 5 he has refused to maintain the respondents. 12. The revision petitioner's main defence was that the 1[st] respondent was living separately from him without sufficient cause. The materials on record prove that although the revision petitioner filed O.P.No.389/2013, for a decree for restitution of conjugal rights, the Family Court, by the same impugned common judgment, has found that the claim put forth by the revision petitioner was without any bonafides and consequentially dismissed the petition. Likewise, the Family Court allowed the application filed by the 1[st] respondent for a decree of divorce. Therefore, as on the date of passing of the impugned common judgment, the 1[st] respondent was the divorced wife of the revision petitioner. Thus, defence of the revision petitioner that the 1[st] respondent is living separately without sufficient cause is no longer sustainable in law. Hence, the finding of the Family Court, that the revision petitioner is liable to maintain the respondents @ Rs.4,000/-, Rs.3,000/- and Rs.2,500/- respectively is reasonable and justifiable. 13. In the celebrated decision in **Rajnesh v. Neha** RPFC NO. 446 OF 2016 6 **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. 14. In **Captain Ramesh Chander Kauushal 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. 15. 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 RPFC NO. 446 OF 2016 7 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. 16. 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. 17. On an overall consideration of the pleadings 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 is devoid of any merits and is only liable to be dismissed. 18. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders oof this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order, and in case of any change of RPFC NO. 446 OF 2016 8 circumstances, the parties would be at liberty to move the Family Court under Section 127 of the Code. Sd/- **C.S.DIAS, JUDGE** rkc/12.12.23