RAMESAN S/O RAMAKRISHNAN v. LATHA and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE N.K. BALAKRISHNAN** ## **THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933** **Crl.MC.No. 3420 of 2011()** **----------------------------------MC.548/2010 of Family court at Thrissur ....................................................................** **PETITIONER:** - **------------------** **RAMESAN,S/O.RAMAKRISHNAN, EDAKKATTIL HOUSE,VALLISSERY DESOM, AVINISSERY THRISSUR DISTRICT.** **BY ADV. SRI.T.N.MANOJ** **RESPONDENTS:** **----------------------** ## **1. LATHA,** **D/O.KUTTAPPAN,PUTHUR HOUSE,VALLISSERY DESOM, AVINESSERY,THRISSUR.** ## **2. STATE OF KERALA** **THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA,KOCHI-31.** **R1 BY ADVS. SRI.V.BINOY RAM SRI.K.D.BABU(KOTTACKAL)** ## **R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JM** ## **Crl.MC.No. 3420 of 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **ANNEXURE (A) TRUE COPY OF M.C. 548/2010 FILED UNDER SEC.125 OF CRPC BEFORE THE FAMILY COURT AT THRISSUR. ANNEXURE (B) TRUE COPY OF PETITION MP 550/2011 SEEKING INTERIM MAINTENANCE. ANNEXURE (C) TRUE COPY OF OBJECTION FILED BY THE PETITIONER TO THE MC 548/2010. ANNEXURE( D) TRUE COPY OF THE CERTIFICATE OF MARRIAGE PRODUCED BEFORE THE FAMILY COURT AT THRISSUR. ANNEXURE( E) TRUE COPY OF PETITION SEEKING A DECREE FOR DECLARATION OF MARRIAGE TO BE NULL AND VOID PENDING BEFORE THE FAMILY COURT. ANNEXURE( F) TRUE COPY ORDER IN MP 550/2011 OF THE FAMILY COURT AT THRISSUR.** **RESPONDENTS' EXHIBITS : NIL** ## **\\TRUE COPY\\** **P.A. TO JUDGE** ## **JM** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.M.C.No.3420 of 2011 ---------------------------------------------------Dated this the 17th day of November, 2011** ## **Order** The petitioner challenges the interim order of maintenance passed by the learned Judge, Family Court, Thrissur as per which the petitioner herein was directed to pay monthly maintenance at the rate of Rs.1500/- per month from 1.5.2011 onwards. The learned counsel for the petitioner submits that strong objection was raised with regard to the status of the parties. It was specifically averred in the M.C. filed before the court below that the first respondent herein is not the legally wedded wife of the petitioners. Unless and until that is decided by the court, the liability to pay maintenance does not arise at all, argues the learned counsel. It is further argued that the very objection raised by the petitioner herein is that she had earlier contracted a marriage and that marriage was not dissolved and so since the second marriage was had without dissolving the first marriage, the second marriage should be treated as null and void and if so, the first respondent herein is not entitled to maintenance. It is Crl.M.C.3420/2011 2 further argued that no opportunity was given to the petitioner to challenge the quantum of maintenance. Though it was stated in the petition filed by the first respondent that the petitioner is employed or is having avocation at Bangalore, even in the petition he is shown as a person residing in Thrissur District and so that itself will unfold the fallacy of the case putforward by the first respondent-wife. It is further argued that the financial capacity of the petitioner herein was not at all considered by the court below while ordering maintenance. 2. The submissions made by the learned counsel for the petitioner were resisted by the learned counsel for the 1[st] respondent-wife. Annexure (e), the objection statement filed by the petitioner herein in O.P.No.1245 of 2011 has been referred to by the learned counsel, where, in paragraph 3 it was specifically admitted by the petitioner herein that the marriage between him and the first respondent herein was solemnized on 1.4.2007 and they were living together in the taravad house of the petitioner herein for some time. In the light of the unambiguous admission contained in paragraph 3, no further evidence was required to be produced by the first respondent-wife to prove the marriage. But Crl.M.C.3420/2011 3 the learned counsel for the petitioner would submit that his definite case was that the 1[st] respondent was not the legally wedded wife of the petitioner and that the marriage was yet to be consummated. It is easy to make such a statement. In the light of the admission that they lived together in the taravad house of the petitioner, the contention that there was no consummation of marriage cannot be sustained at this stage. The other argument that the marriage between the petitioner and the first respondent was had during the subsistence of the first marriage is also attacked by the learned counsel for the first respondent-wife pointing out that the first respondent has not admitted anywhere that there was a subsisting marriage between the petitioner and his alleged former wife and as such the question whether there was a subsisting marriage or that the present marriage between the petitioner and the first respondent is a nullity etc. are not matters which can be decided when an application for interim maintenance is filed by the deserted wife. The learned counsel for the petitioner has relied upon the decision of the apex court in **Pyla Mutyalamma v. Pyla Suri Demudu** [2011(3) KLT 815 (SC) ]and also in **Savitaben Somabhai Bhatiya v. State of** Crl.M.C.3420/2011 4 **Gujarat and others** [ (2005) 3 SCC 636] to support his submission that the expression 'wife' used in Section 125 Cr.P.C. should be a legally wedded wife and as such the first respondent is not entitled to get maintenance. It is a case where the petitioner wanted to take advantage of the alleged existence of the earlier marriage between himself and another woman to contend that the first respondent who was actually married by him, as admitted by him, in para 3 of his objection, to deny payment of maintenance to the first respondent herein who was admittedly married by the petitioner on 1.4.2007. What is germane for consideration in this petition for interim maintenance is whether there was a marriage between the petitioner and the 1[st] respondent-wife. That was in fact admitted. Though the petitioner contends that it was not legal because of the alleged subsistence of the earlier marriage between the petitioner and his former wife, that cannot be a reason to deny interim maintenance. All other aspects are to be considered in the main petition only. 3. The contention is regarding the quantum of maintenance. It is true that there must be some evidence to decide the Crl.M.C.3420/2011 5 quantum of maintenance. But here what is awarded is only Rs.1500/- per month which is the bare minimum amount required for a woman, considering the present day expenses, to keep her body and soul together. If the liability of the respondent to pay maintenance to the wife is to be upheld, then certainly the husband has to earn the money to provide maintenance to his wife. There is no case that he is suffering from any ailment which prevents him from earning something for providing maintenance to the wife. It is made clear that these observations are made only for the disposal of this case. I find that since the amount of interim maintenance granted is only at the rate of Rs.1500/- per month, it requires no interference. The Crl.M.C. is accordingly dismissed. ## **N.K.BALAKRISHNAN, JUDGE.** srd Crl.M.C.3420/2011 6 Crl.M.C.3420/2011 7