Nizar v. Habeebath M.K. and Ors.

1 R.P (FC) No.496 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 ``` ``` RPFC NO. 496 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT MC 276/2014 OF FAMILY COURT, CHAVARA ``` ## **`REVISION PETITIONER/S:`** ``` NIZAR,AGED 46 YEARS, S/O. ABDUL KAREEM, VALIYATHU HOUSE, KOZHIKKODE THEKKU MURI, S.V MARKET P.O., AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY, NOW WORKING AS POLICE HEAD CONSTABLE AT MUNNAR POLICE STATION, MUNNAR P.O., IDUKKI DISTRICT BY ADVS. SRI.T.H.ABDUL AZEEZ SRI. AJMAL V. A. SRI.K.N.MUHAMMED THANVEER ``` ## **`RESPONDENT/S:`** ``` 1HABEEBATH M.K.,AGED 37 YEARS, W/O. NIZAR, VALIYATHU HOUSE, KOZHIKKODU THEKKUM MURI, S.V. MARKET P.O., AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY, PIN- 690 518. 2NOUFIYA NIZAR,AGED 18 YEARS, D/O. NIZAR, VALIYATHU HOUSE, KOZHIKKODU THEKKUM MURI, S.V. MARKET P.O., AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY, PIN- 690 518. 3NAISAM NIZAR,AGED 14 YEARS, (MINOR), REPRESENTED BY THE 1ST RESPONDENT, HABEEBATH M.K., VALIYATHU HOUSE, KOZHIKKODU THEKKUM MURI, S.V. MARKET P.O., AYANIVELIKULANGARA VILLAGE, KARUNAGAPPALLY, PIN- 690 518. BY ADV SRI.K.K.SATHISH ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.496 of 2016 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.496 of 2016 ----------------------------Dated this the 17[th] day of November, 2023 ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.276/2014 of the Family Court, Chavara, directing the revision petitioner to pay – his wife and children - monthly maintenance allowance @ Rs.5,000/- to the first respondent, Rs.6,000/- to the second respondent and Rs.4,000/- to the third respondent from 24.11.2014 onwards. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. 3 R.P (FC) No.496 of 2016 ## **Brief facts** 2. The respondents had filed the application under Sec.125(1) of the Code of Criminal Procedure (in short, “Code”) asserting that the first respondent was married to the revision petitioner on 3.5.1998. The respondents 2 and 3 were born in the wedlock on 26.2.1999 and 4.11.2002, respectively. The revision petitioner is working in the Kerala Police. After the revision petitioner got transferred, he lost interest in the respondents and started leading an extravagant life style. He also got addicted to alcohol and indulged in extramarital relationship. Since 03.10.2013, the revision petitioner has deserted the respondents and wilfully refused to maintain them. He is drawing a monthly salary of Rs.35,000/- and also earning Rs.25,000/- from 4 R.P (FC) No.496 of 2016 his business in the sale of secondhand vehicles. The respondents have no employment or source of income to sustain themselves. Hence, the application. 3. The revision petitioner filed a written objection refuting the allegations in the application. He contended that the first respondent was living separately without any sufficient cause. He is ready to maintain the respondents @ Rs.1,500/- per month. He prayed that the application be dismissed. 4. The first respondent was examined as PW1 and Exts P1 and Exts X1 to X9 were marked through her in evidence. The revision petitioner was examined as RW1 and his salary certificate was marked as Ext D1. 5. The Family Court, after analysing the materials placed on record, by the impugned order, allowed the 5 R.P (FC) No.496 of 2016 application in part and directed the revision petitioner to pay the respondents monthly maintenance allowance as observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri.T.H. Abdul Azeez, the learned counsel appearing for the revision petitioner and Sri.K.K. Sathish, the learned counsel appearing for the respondents. 8. Is there or any illegality, impropriety irregularity in the impugned order? 9. The revision petitioner admits his marriage with the first respondent and also the paternity of the respondents 2 & 3. He has conceded to maintain his 6 R.P (FC) No.496 of 2016 children – the respondents 2 & 3 – by paying monthly maintenance allowance @ Rs.1,500/- each per month. 10. The respondents’ case in the application was that, the revision petitioner has refused to maintain them, despite drawing a monthly salary of Rs.35,000/- and also earning Rs.25,000/- per month from his business. They do not have the means to maintain themselves. 11. The revision petitioner’s defence was that the first respondent is living separately without any sufficient cause. Nonetheless, he was ready to resume cohabitation with the respondents and maintain the respondents 2 and 3. 12. The revision petitioner himself produced Ext D1 salary certificate, which proves that he was drawing a monthly salary of Rs.31,640/-. Admittedly, the 7 R.P (FC) No.496 of 2016 revision petitioner has not taken any steps to resume cohabitation with the first respondent. He has not filed any petition for a decree for restitution of conjugal rights. He has only made a bald assertion that he is ready to resume cohabitation with the respondents and maintain the respondents 2 & 3 . 13. The Family Court, after appreciating the pleadings and materials on record, found that the revision petitioner is well employed and is liable to pay Rs.15,000/- as monthly maintenance allowance to the respondents. 14. 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 8 R.P (FC) No.496 of 2016 dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 15. 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. 16. 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 9 R.P (FC) No.496 of 2016 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 could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 17. After bestowing my anxious consideration to the pleadings and materials on record and taking into account the income and status of the revision petitioner, I find the quantum of maintenance fixed by the Family Court to be quite reasonable and justifiable. The revision petition is devoid of any merits and is only liable to be dismissed. 10 R.P (FC) No.496 of 2016 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 and pay only the balance amount due as per the impugned order to the respondents. sd/- sks/17.11.2023 **C.S.DIAS, JUDGE**