High Court of KeralaSingle Judge2023-11-21Revision petition dismissed; maintenance order ...

NISAR S/O KOOTUNGAKVEETILKUNJIMON v. SUBAIRA D/O APPAKKANDATHIL SAIDU MUHAMMED and MINORS 2 to 5 (through mother Subaira)

Case / Petition Number:R.P (FC) No.127 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2023-11-21
Court Decision / Holding: The revision petition is dismissed; the impugned order of the Family Court directing maintenance at Rs. 3,000 to the wife and Rs. 1,500 to each of the four minors (total Rs. 9,000 per month) stands confirmed. The Court notes the applicant’s deposits, if any, may be adjusted against the balance due as per the impugned order.
Final Disposition: Revision petition dismissed; maintenance order upheld and confirmed; possible adjustment of any deposited amounts against the balance due.

Parties to the Case

Appellants / Petitioners

Nisar s/o Kootungakveetilkunjimon

Respondents

Subaira d/o Appakkandathil Saidu Muhammed
Minor Abu Tahir
Minor Ali Ashkar
Minor Hassan
Minor Hussain

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V.C. Madhavankutty

Counsels for Respondents

• Sri. Benoj C Augustine
• Smt. J. Kasturi
• Sri. Nagaraj Narayanan
• Sri. Prathap Pillai
• Sri. Saijo Hassan
• Sri. Sebin Thomas
• Sri. Vivek V. Kannankeri

Case Synopsis & Summary

This revision petition challenges the Family Court, Thrissur’s order in MC 360/2013 that directed the revision petitioner, Nisar, to pay maintenance under Section 125 CrPC to his wife Subaira and to four minor children (Abu Tahir, Ali Ashkar, Hassan and Hussain). The Family Court consolidated three proceedings (maintenance, recovery of money and partition) and, after trial, partly allowed the application, ordering maintenance at Rs. 3,000 per month to the wife and Rs. 1,500 per month to each minor from the date of petition, totaling Rs. 9,000 monthly. Nisar admitted marriage and paternity of the minors but argued lack of means owing to injuries and disability; he asserted the wife left home due to cruelty and that he could not be compelled to pay maintenance beyond his capacity. The respondents argued that Nisar had sufficient means, with allegations of prior bus-conductor work and involvement in real estate, and cited his earning potential (Rs. 80,000/month) to justify maintenance. The High Court, however, did not find credible the claimed incapacity and affirmed the Family Court’s approach to compute notional income and maintenance. It held that the Rs. 9,000 monthly maintenance fixed by the Family Court was reasonable and justified. The revision petition was dismissed, with directions on adjustment of any deposits if applicable.

Provisions of Law Cited

Sec.125 of the Code of Criminal Procedure (CrPC)Section 19(4) of the Family Courts Act, 1984Constitution of India, Article 15(3)Constitution of India, Article 39Family Courts Act, 1984Code of Criminal Procedure (CrPC)

Legal Doctrines & Maxims

Maintenance as a measure of social justice to provide recourse to dependants (wife and minor children) to prevent destitution, as recognized in Rajnesh v. Neha and Anr.
Duty of the husband to provide financial support to wife and minor children (sacrosanct duty)
Notion that courts may apply notional income/guarantee a reasonable quantum of maintenance (allowed by courts in calculating maintenance)
Maintenance laws to ameliorate financial suffering and ensure sustenance (Bhuwan Mohan Singh v. Meena & Ors.)

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that he has no substantial source of income and is disabled due to injuries, which impede his earning capacity. He asserts that the Respondents have not established his incapacity with concrete evidence and argues that the Family Court should consider his actual earnings or notional income more cautiously, rather than fixing Rs. 9,000 per month as maintenance. He emphasizes his alleged injuries and suggests that the Respondents left the matrimonial home, reducing his liability to maintain, and seeks reassessment or relief from excessive burden in light of his limited means.

Contentions of Respondents

The respondents argue that the petitioner had ample means and that the maintenance order reflects his ongoing obligation to his wife and four minor children. They rely on the petition filed in 2013 and the evidence that the petitioner previously earned up to Rs. 80,000 per month (bus conductor/real estate). They contend that despite alleged injuries, he could have earned or could be capable of earning, and thus a maintenance quantum of Rs. 9,000 per month is reasonable and consistent with the social-justice aim of Sec.125 CrPC.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Rajnesh v. Neha and Anr	2020 (6) KHC 1	Positive	Cited to reinforce the principle that maintenance provisions under Sec.125 CrPC serve social justice by preventing destitution among dependants.
Captain Ramesh Chander Kaushal v. Veena Kaushal & Ors.	(1978) 4 SCC 70	Positive	Cited to underscore that maintenance is a social-justice measure aimed at protecting women and children, supported by constitutional values (Art. 15(3), Art. 39).
Bhuwan Mohan Singh v. Meena & Ors.	(2015) 6 SCC 353	Positive	Cited to emphasize that Sec.125 maintenance is intended to lessen suffering and that a court may determine quantum through reasoned estimation of income and needs.

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Extracted Judgment Text

Exact text extracted from official judgment records.

1 R.P (FC) No.127 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ``` RPFC NO. 127 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT MC 360/2013 OF FAMILY COURT,THRISSUR ``` ## **`REVISION PETITIONER/S:`** ``` NISAR,S/O.KOOTUNGAKVEETILKUNJIMON, MARATHAMKODE VILLAGE DESOM, THALAPPALLY TLAUK. BY ADV SRI.V.C.MADHAVANKUTTY ``` ## **`RESPONDENT/S:`** ``` 1SUBAIRA,D/O.APPAKKANDATHIL SAIDU MUHAMMED, VELUR VILLAGE, KURUMALDESOM, THALAPILLY TALUK-680 006. 2MINOR ABU THAHIR,AGED 13 YEARS 680 006. 3MINOR ALI ASHKAR,AGED 10 YEARS 680 006. 4MINOR HASSAN,AGED 10 YEARS 680 006. 5MINOR HUSSAIN,AGED 8 YEARS (MINOR 2 TO 5 REPRESENTED BY GUARDIAN AND MOTHER SUBAIRA) 680 006. BY ADVS. SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI SRI.NAGARAJ NARAYANAN SRI.PRATHAP PILLAI SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.VIVEK V. KANNANKERI ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.127 of 2016 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.127 of 2016 ----------------------------Dated this the 21[st] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.360/2013 of the Family Court, Thrissur, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.3,000/- to the first respondent and Rs.1,500/- each to the respondents 2 to 5 from the date of petition. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. 3 R.P (FC) No.127 of 2016 ## **Brief facts** 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 @ Rs.6,000/- to the first respondent and Rs.4,000/- each to the respondents 2 to 5. It was their case that the revision petitioner was married to the first respondent on 21.8.1999 as per the Muslim religious rites and customs of the community. The respondents 2 to 5 are the children born in their wedlock. The revision petitioner treated the first respondent with cruelty. The revision petitioner has misappropriated money and gold ornaments of the first respondent, which was entrusted as her share in her parental properties. Due to the 4 R.P (FC) No.127 of 2016 severe brutality of the revision petitioner, the first respondent was constrained to leave the matrimonial home with the children. The revision petitioner is a bus conductor and is also doing real estate business and is earning a monthly income of Rs.80,000/-. The respondents do not have any means to sustain themselves. Hence, the application. 3. The revision petitioner filed a written objection denying the allegations in the application. However, he conceded that the first respondent was his wife and the respondents 2 to 5 are his children born in the wedlock. He denied the allegation that he was working as a bus conductor and was doing real estate business. It was his case that he sustained an injury in an accident and is unable to carry on with his avocation. The respondents 5 R.P (FC) No.127 of 2016 are living separately from him without any sufficient cause. Therefore, he is not liable to maintain them and the application may be dismissed. 4. The respondents had also filed OP No.1208/2013 and the revision petitioner had filed OP No.692 of 2013 before the same Court, seeking a decree for recovery of money, gold ornaments and past maintenance and for a decree for partition, respectively. 5. The Family Court consolidated and jointly tried all the three proceedings. 6. The first respondent was examined as PW1 and Exts A1 to A7 were marked through her in evidence. The revision petitioner got himself examined as RW1 and Exts B1 to B7 were marked on his side. 6 R.P (FC) No.127 of 2016 7. The Family Court, after appreciating the pleadings and materials placed on record, by its common order, partly allowed the application by directing the revision petitioner to pay the monthly maintenance allowance to the first respondent @ Rs.3,000/- and respondents 2 to 5 @ Rs.1,500/- each. 8. It is assailing the said order; the revision petition is filed. 9. Heard; Sri.V.C Madhavankutty, the learned counsel appearing for the revision petitioner and Sri.Nagaraj Narayanan, the learned counsel appearing for the respondents. 10. Is there or any illegality, impropriety irregularity in the impugned order? 7 R.P (FC) No.127 of 2016 11. The respondents’ case was that the first respondent is the wife of the revision petitioner and the respondents 2 to 5 are the children born in the wedlock. The revision petitioner despite having sufficient means, has refused to maintain the respondents. 12. The revision petitioner admitted his marriage with the first respondent and the paternity of the respondents 2 to 5. His principal defence was that the first respondent was living separately from him without sufficient cause and he is unable to maintain the respondents due to an injury he sustained in an accident. 8 R.P (FC) No.127 of 2016 13. 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. 14. 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. 9 R.P (FC) No.127 of 2016 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 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 10 R.P (FC) No.127 of 2016 arriving at the notional income of the husband/father and fixing the quantum of maintenance. 17. The respondents’ assertion was that the revision petitioner was a bus conductor and doing real estate business, and was earning Rs.80,000/- per month. The revision petitioner only contended that in view of an accident suffered by him, he is unable to do any work. There is absolutely no material on record to substantiate the affliction of the revision petitioner. Therefore, the revision petitioner is deemed to be an able bodied person. 18. The application was filed in the year 2013. At that point of time, the revision petitioner would have easily earned Rs.20,000/- per mensum by working as a daily labourer. Therefore, the quantum of monthly 11 R.P (FC) No.127 of 2016 maintenance fixed by the Family Court @ Rs.9,000/- to be paid to the respondents is reasonable and justifiable. I do not find any error in the said fixation. 19. 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 by exercising its revisional powers 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. 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 12 R.P (FC) No.127 of 2016 amount, while paying the balance amount due, as per the impugned order. sd/- sks/21.11.2023 **C.S.DIAS, JUDGE**