Nagesh Kumar v. State of Kerala represented by Public Prosecutor, Shailaja, and Parvathi S. Nair

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 ``` ## **`RPFC NO. 406 OF 2014`** ## **`MC 87/2014 OF FAMILY COURT, NEDUMANGAD`** ## **`REVISION PETITIONER/S:`** ``` NAGESH KUMAR,AGED 47 YEARS S/O.THANKAPPAN NAIR, SAJIBHAVAN, CHOOZHAKUZHYKATTAKKAL, PUTHUKULANGARA, THIRUVANANTHAPURAM DISTRICT ``` ``` BY ADVS. SRI.BLAZE K.JOSE SRI.ANIL VIJAYAN SMT.NEETHU PREM SRI.RAHUL SASI SRI.SAJIN JOSEPH ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.` - `2 SHAILAJA, AGED 41 YEARS D/O.PARAMESHWARI AMMA, MUTHIYAMKUZHIVEEDU, MYLAM CHERIYAKONNI, ARUVIKKARA, THIRUVANANTHAPURAM DISTRICT PIN-695 121.` - `3 PARVATHI S. NAIR AGED 16 YEARS D/O.SHAILAJA, MUTHIYAMKUZHIVEEDU, MYLAM CHERIYAKONNI, ARUVIKKARA, THIRUVANANTHAPURAM DISTRICT PIN-695 121.` ## **`OTHER PRESENT:`** ``` ADV. URMILA ZACHARIAH FOR THE PETITIONER ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **RPFC 406/14** ## **BASANT BALAJI J.,** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - R.P.(F.C.) No.406 OF 2014 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## **O R D E R** (Dated this the 2[nd] day of June 2022) The revision petitioner herein is the respondent and respondent Nos.2 and 3 herein are the petitioners in M.C. No.87 of 2014 on the files of the Family Court, Nedumangad. The said M.C. was filed by the petitioners claiming maintenance at the rate of Rs.6,000/-and Rs.7,500/- per month. (The parties are referred to in the order as they appeared in the proceedings before the court below). 2. The first petitioner is the legally wedded wife of the respondent and the marriage was solemnised on ## **RPFC 406/14** 8.11.1996 and in the wedlock, the 2[nd] petitioner was born. The respondent wilfully neglected the petitioners. The first petitioner has no job or any income. The respondent is a rubber tapper and getting a monthly income of Rs.25,000/per month. Hence the petitioners claimed a monthly maintenance at the rate of Rs.6,000/- and Rs.9,500/respectively. 3. The respondent filed objection contending that for the last 17 years, the first petitioner deserted him. The respondent sustained serious injury and is unable to do his work. O.P. No.1541 of 2011 was filed by the respondent for a decree of divorce and the first petitioner was remained ex-parte. The divorce was granted on the ground of cruelty. The amount of maintenance claimed is exorbitant. 4. The evidence consisted of oral evidence of PW1 ## **RPFC 406/14** -4- and CPW1 and Exts.R1 to R5 were marked on the side of the respondent. 5. The Family court, by the impugned order, allowed maintenance at the rate of Rs.6,000/- to the first petitioner and Rs.3,000/- to the second petitioner from the date of petition. ## 6. Heard the learned counsel on both sides. 7. The counsel for the petitioner submits that the court below, without any evidence, accepted the case of the petitioners that the the respondent is earning Rs.25,000/per month though in reality he is earning only Rs.3,000/per month. He had sustained injury in a fall from the tree and he had to undergo long treatment and still undergoing the same. Though he was a rubber tapper, at present he is not able to continue the work and working as a salesman in ## **RPFC 406/14** a Fancy store and earning Rs.3,000/- per month. The petitioner tried all necessary steps to amicably settle the disputes between them, but the wife is very adamant and took a stubborn stand that she does not want to continue with the relationship. Though a legal notice dated 15.10.2011 was sent requesting her to rejoin with him, she did not accept the same. When the husband/petitioner had no other alternative, O.P. No.1541 of 2011 was filed and obtained a decree of divorce. 8. The respondents, on the other hand, contend that the petitioner/husband is an able bodied man though he had suffered an injury in the year 2004. At the time of filing of the petition in 2014, i.e., after a lapse of 10 years, he is capable of doing work and earning income and it is only to defeat the claim of the respondents that the **RPFC 406/14** -6- petitioner/husband raised a contention that he is still undergoing treatment and working as a salesman in a Fancy store earning Rs.3,000/- per month. Moreover, the first petitioner/wife is undergoing treatment at Regional Cancer Centre, Thiruvananthapuram. The husband has already admitted that he has purchased a vehicle for Rs.40,000/- in his name. But his contention is that it was actually for his brother that the said vehicle was purchased. 9. Section 125 Cr.P.C. is a provision enacted to protect women and children from vagrancy and destitution. The Hon’ble Apex Court in a decision reported in **Badshah v. Sou Urmia Badshah Godse [2013(4) KLT 367 (SC)]** held as follows: “While dealing with the application of ## **RPFC 406/14** -7- destitute wife or children or parents under this provision, the Court is dealing with the margianlized sections of the society. The purpose is to achieve “social justice” which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Provision of maintenance would definitely fall under category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour”. 10. The Hon’ble Apex Court in a number of decisions held that an able bodied man is legally and morally has a duty to maintain his wife, who is living separately for sufficient reason. Though Ext.R3 was produced to show that he has sustained an injury, but the same only shows that he was admitted with fracture of D12 and was advised ## **RPFC 406/14** -8- for bedrest. The said document does not show that he sustained any permanent disability. The discharge was on 8.4.2004 and the claim for maintenance was in the year 2014. The respondent cannot contend after a period of 10 years that he is unable to do any job and earning an income though he admits the fact that he is working in a Fancy store earning Rs.3,000/-per month. In view of the matter, the court below was justified in allowing the petition and granting maintenance at the rate of Rs.6,000/- per month to the 1[st] petitioner and Rs.3,000/- per month to the 2[nd] petitioner, who is 16 years old. The maintenance awarded for the 2[nd] petitioner will extinguish once she attains the age of 18 years. On going through the oral as well as the documentary evidence adduced, I am of the opinion that the Family Court was right in awarding the maintenance at the ## **RPFC 406/14** -9- rate of Rs.6,000/- per month to the first petitioner and Rs.3,000/- to the second petitioner. Taking note of the fact that the first petitioner is a patient undergoing treatment at Regional Cancer Centre, Thiruvnanathparuam and also taking into consideration of the income of the husband/petitioner, I find no illegality or impropriety in the order passed by the court below and hence, the Revision Petition is dismissed. **sd BASANT BALAJI, JUDGE** _dl/_