Priyakumar T.P v Minimol and Gouri

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ## **`THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945`** ## **`RPFC NO. 26 OF 2016`** ``` AGAINST THE ORDER IN MC 117/2013 OF FAMILY COURT, THODUPUZHA ``` ## **`REVISION PETITIONER/RESPONDENT:`** ``` PRIYAKUMAR T.P AGED 43 YEARS S/O.PRABHAKARAN, R./AT.THARANILATH HOUSE, VELLATHOOVAL VILLAGE & POST, KUTHUPARA, IDUKKI DISTRICT ``` ``` BY ADV SRI.S.JIJI ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1MINIMOL AGED 41 YEARS ``` ``` D/O.VIJAYAN, PALATHUMTHALACKAL HOUSE, CHENGULAM POST, MUTHUVANKUDY, KUNCHITHANNI VILLAGE, IDUKKI DISTRICT ``` ``` 2GOURI, AGED 11 YEARS, D/O.PRIYAKUMAR, PALATHUMTHALACKAL HOUSE, CHENGULAM POST, MUTHUVANKUDY, KUNCHITHANNI VILLAGE, IDUKKI DISTRICT (2ND RESPONDENT IS A MINOR AND REPRESENTED BY HER MOTHER THE FIRST RESPONDENT) ``` ``` BY ADVS. SMT.K.P.AMBIKA SRI.P.K.IBRAHIM SMT.A.A.SHIBI ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`R.P(F.C.) NO. 26 OF 2016 2`** **Dated this the 7[th] day of December, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C. No.117/2013 of the Family Court, Thodupuzha, ordering the revision petitioner to pay the respondents - his wife and daughter monthly maintenance allowance @ Rs.5000/- each from the date of order (31.10.2014). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts** 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure (‘Code’, for short), seeking monthly maintenance allowance from the revision petitioner @ Rs.5000/- each. It was their case that, the revision petitioner and the first respondent got married on 24.10.1999 and two children were born in ## **`R.P(F.C.) NO. 26 OF 2016 3`** the wedlock, including the second respondent, who was the younger child. The older child has attained majority The respondents have no means to maintain themselves. The revision petitioner is an able bodied person and is earning Rs.15,000/- per month from his landed properties and Rs.30,000/- per month from his business in sale of solar water heaters and lights. Hence, the application. 3. The revision petitioner had filed written objection denying the allegations in the application. He admitted his marriage with the first respondent and the paternity of their children. He alleged that he is not doing business in solar lights or water heaters and has no fixed monthly income. On the contrary, the first respondent is working as an Accountant and is earning Rs.20,000/- per month. The first respondent deserted the revision petitioner without any sufficient cause. The present application is only to harass the revision petitioner. Hence, the application may be dismissed. 4. The first respondent was examined as PW1 and ## **`R.P(F.C.) NO. 26 OF 2016 4`** Exts. A1 to A4 were marked on her side. The revision petitioner was examined as RW1. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, allowed the application as observed above. 6. It is assailing the said order; the present revision petition is filed. 7. Heard; Sri. Jiji S., the learned counsel appearing for the revision petitioner and Sri.P.K.Ibraham, the learned counsel appearing for the respondents. 8. Is there any illegality, irregularity or impropriety in the impugned order? 9. The revision petitioner has admitted his marriage with the first respondent and the paternity of the second respondent. The respondents’ case was that, although the revision petitioner was an able bodied person and earning Rs.45,000/- per month from his business and landed properties, he has willfully refused to maintain the respondents. They require Rs.10,000/- per month for ## **`R.P(F.C.) NO. 26 OF 2016 5`** their maintenance. 10. The revision petitioner’s defence was that, the first respondent was living separately from him without sufficient cause or reason. Moreover, the first respondent was working as an Accountant and earning Rs.20,000/- per month. 11. 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. 12. 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 ## **`R.P(F.C.) NO. 26 OF 2016 6`** by Article 39. 13.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. 14. 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. 15. The respondents had contended that the revision petitioner is an able bodied person and earning ``` R.P(F.C.) NO. 26 OF 2016 7 ``` Rs.45,000/- per month. The revision petitioner on the other hand contended that he does not have any income and was unable to maintain the respondents. He also contended that the first respondent is living separately from him without sufficient reason or cause. Although the revision petitioner made the above assertion, there is no material to substantiate that the revision petitioner made an effort to resume cohabitation with the first respondent or filed a petition for a decree for restitution of conjugal rights. The revision petitioner was aged 40 years at the time of filing the application. There is nothing on record to prove that he was suffering from any mental or physical ailment. Therefore, the revision petitioner is deemed to be an able bodied person. An able bodied person in the year 2013, by any stretch of imagination would have earned Rs.1000/- per day for a period of 25 days. Thus, the revision petitioner’s notional income is fixed at Rs.25,000/- per month. 16. On a consideration of the pleadings and materials ## **`R.P(F.C.) NO. 26 OF 2016 8`** on record and taking note of the notional income fixed by this Court, I am of the definite view that the order of maintenance granted by the Family Court to the first respondent @ Rs.5000/- per month is reasonable and justifiable. However, fixing the same amount of maintenance for the second respondent who was only a minor child aged 9 years at the time of the application, I am of the view that the quantum is on the higher side. Therefore, I hold that the interest of justice would be met by modifying the quantum of maintenance awarded to the second respondent by reducing it to Rs.2500/- per month from the date of application till the date the second respondent has attained majority, as laid down by this Court in **Cholamarakkar & Anr. v. Pathummamma @ Pathumma & Anr.** [2008 (3) KHC 973 (DB)] and **Yousuff v. Nafeesakutty and Ors.** [2020 (1) KLT 369 ] 17. After bestowing my anxious consideration to the pleadings and materials on record and the law on the point, I do not find any illegality, impropriety or ## **`R.P(F.C.) NO. 26 OF 2016 9`** irregularity in the impugned order granting maintenance to the first respondent. Therefore, I confirm the order as regards the first respondent. With regard to the second respondent, as observed above, the impugned order needs to be interfered with, by reducing the quantum of maintenance and directing the revision petitioner to pay monthly maintenance to the second respondent @ Rs.2500/- from the date of petition till the date she attained majority. In the result, (i) The revision petition is partly allowed. (ii) The order directing the revision petitioner to pay monthly maintenance allowance to the first respondent is confirmed. (iii) The order directing the revision petitioner to pay monthly maintenance to the second respondent is modified by reducing the quantum of maintenance to Rs.2500/- and directing the revision petitioner to pay the said amount from the date of petition till the date the ## **`R.P(F.C.) NO. 26 OF 2016 10`** second respondent attained majority. (iv) The revision petitioner shall pay the entire arrears of maintenance to the respondents, as directed above, in four equated and successive monthly instalments commencing from 7.1.2024. (v) Needless to mention, if the revision petitioner has already paid any amount, pursuant to the interim orders of this Court or the order of the Family Court, the amounts shall be adjusted while calculating the arrears of maintenance. (vi) If any amount is deposited, the same shall be released to the respondents in accordance with law. (vii) The Registry is directed to forthwith communicate this order to the Family Court for further proceedings. ## **SD/-** ## **C.S.DIAS, JUDGE** rmm8/12/2023