Ramesan v. Nishi and Rithu Krishna (minor) represented by Nishi

1 RPFC 216 OF 2014 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** ## **RPFC.No.216 OF 2014** **AGAINST THE ORDER/JUDGMENT IN MC 121/2013 DATED 18-02-2013 OF FAMILY COURT, VADAKARA** ## **REVISION PETITIONER/S:** **RAMESAN** **S/O.KUMARAN, MUTHALITHAZHA, PALLIKKARA AMSOM DESOM, KOYILANDY TALUK.** **BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA** ## **RESPONDENT/S:** **1 NISHI AGED 36 YEARS D/O.KUMARAN, KALLIDAVAYALIL, THURAYUR AMSOM DESOM, POST THURAYUR - 673 305.** **2 RITHU KRISHNA AGED 7 YEARS (MINOR), D/O.NISHI, KALLIDAVAYALIL, THURAYUR,KOYILANDY TALUK - 673 305.REPRESENTED BY HER MOTHER NISHI, KALLIDAVAYALIL, THURAYUR AMSOM DESOM, POST THURAYUR.** **R1 BY ADV. SRI.R.BINDU (SASTHAMANGALAM)** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RPFC 216 OF 2014 ## **ORDER** The revision petitioner is the respondent in M.C. No.121 of 2013 on the file of the Family Court, Vadakara. The petitioners in the above maintenance case (M.C.) are the respondents in this revision petition (R.P.(FC)). 2. The respondents, the wife and child of the revision petitioner had filed the M.C. before the Family Court seeking monthly maintenance at the rate of Rs.5,000/- and 4,000/- each, respectively, from the revision petitioner. It was their case before the Family Court that, the revision petitioner married the 1[st] respondent on 12.11.1988. In their wedlock, the 2[nd] respondent was born. 3. According to the respondents, the parents of the revision petitioner harassed and humiliated the 1[st] respondent, demanding more dowry. Knowing that the 1[st] respondent's father had purchased some property, the revision petitioner demanded her father 3 RPFC 216 OF 2014 to purchase it in the joint names of the couple. Accordingly, the property was purchased in the joint names. However, the revision petitioner treated the 1[st] respondent with cruelty. In June 2010, the revision petitioner brutally assaulted the 1[st] respondent. In the above compelling circumstances, feeling apprehensive for her life, she left the matrimonial home to her parental home. 4. It was the respondents further case that the revision petitioner is a mason by profession, and that he gets an average income of Rs.700/- per day. She admitted that she had purchased an auto rickshaw, but was getting an income of less than Rs.100/- per day. In the above circumstances, she filed the M.C. seeking monthly maintenance allowance for herself and the child at the rate of Rs.5,000/- and Rs.4,000/each, respectively. 5. The M.C. was stoutly resisted by the revision petitioner. He admitted the marriage as well as the paternity of the child. He denied the 4 RPFC 216 OF 2014 allegation in M.C that he had harassed and humiliated the 1[st] respondent. According to him, he had purchased a property in his name, after availing financial assistance from the Panchayat. He also constructed a house in the said property with his own resources. He further contended that the 1[st] respondent had developed an illegal intimacy with a man, who went to their house for construction work. She was caught red handed. In the year 2009, the revision petitioner went abroad for the purpose of employment. However, within six months he returned back. The 1[st] respondent adopted a recalcitrant attitude towards him. She was found chatting over phone for long hours. In the month of January, 2011, she left the matrimonial home on the allegation that she had to attend an examination, thereafter, she did not return to the matrimonial home. 6. The revision petitioner also specifically contended that the 1[st] respondent has two auto rickshaws of her own, and she is getting independent 5 RPFC 216 OF 2014 income. It is also alleged that the 1[st] respondent declared that the 2[nd] respondent is not a daughter of the revision petitioner. He gets only an amount of Rs.450-500 per day as a mason. He prayed that the M.C be dismissed. 7. The 1[st] respondent was examined as PW1 and the revision petitioner was examined as RW1. Exhibits. A1 and B1 to B3 were marked through them. 8. The Family Court, after considering pleadings and evidence on record, partly allowed the M.C. by directing the revision petitioner to pay an amount of Rs.1,000/- and Rs.3,000/- per month as monthly maintenance to respondents 1 and 2, respectively. 9. It is assailing the above order passed by the Family Court that the present R.P.(FC) is filed. 10. Heard Sri.K.M.Firoz, the learned counsel for the revision petitioner and Sri.R.Bindu, the learned counsel for the respondents. 6 RPFC 216 OF 2014 11. The learned counsel for the revision petitioner argued that the Family Court had gone wrong in directing the revision petitioner to pay an amount of Rs 1,000/- per month to the first respondent as monthly maintenance, especially considering the fact that the first respondent had admitted in her oral testimony and also in her pleadings that she has an auto rickshaw of her own. The learned counsel also contended that the amount of Rs 3,000/- directed to be paid as monthly maintenance to the second respondent is unreasonable and excessive. According to the learned counsel, the first respondent deserted the revision petitioner without any sufficient cause, and that she is in a position to maintain herself. Hence, the Family Court ought not to have granted any amount as maintenance to the first respondent. 12. The learned counsel for the respondents argued that the first respondent had proved in evidence as per Ext A1 loan account summary that she has availed financial assistance to purchase the auto rickshaw. Even though she had given the auto rickshaw on daily rent at 7 RPFC 216 OF 2014 the rate of Rs 200/- per day, she had to pay an amount of Rs 4,560/- towards monthly installments towards the loan account. Thus, after remittance of the monthly installment, only Rs 1,500/- is the income derived from the auto rickshaw. It is taking into consideration the above income that the Family Court had by the impugned order directed the revision petitioner to pay only Rs 1,000/- per month as monthly maintenance to the first respondent. He contends that there is no illegality or irregularity in the order passed by the Family Court. 13. The Hon'ble Supreme Court in **Sunita Kachwaha vs Anil Kachwaha [AIR 2015 SC 554], Minakshi Gaur vs Chitranjan Gaur and another [AIR** **2009 SC 1377]** and in **Shailaja and another vs Khobbanna [AIR 2017 SC 1174]** has held that merely on the ground that the wife is earning some income, does not disentitle her from claiming maintenance from her husband. The only criteria which is to be kept in mind is the income admittedly being derived by the wife from her employment/work, which will have to be deducted from the total amount that is to be paid as monthly 8 RPFC 216 OF 2014 maintenance by the husband, for the wife to live in the same status and standard of living of the husband. 14. In the present M.C, the Family Court after considering the income of the first respondent has fixed the amount of maintenance payable by the revision petitioner to the first respondent to Rs 1,000/-. The Family Court, on the other hand, directed the revision petitioner to pay the second respondent monthly maintenance at the rate of Rs 3,000/- per month. Thus, the Family Court has considered the law laid down by the Hon'ble Supreme Court in the decisions referred to above, while arriving at its conclusion in the impugned order. 15. The only contention that was raised by the revision petitioner was that the first respondent has got sufficient income to maintain herself, and that she was living separately without sufficient cause. The fact that the Family Court has only awarded Rs 1,000/- per month by itself establishes that the Family Court has considered the entire evidence and the pleadings in its proper perspective. Merely stating that as the first 9 RPFC 216 OF 2014 respondent is living separately without sufficient cause, does not disentitle her to get monthly maintenance from the revision petitioner. 16. I do not find any irregularity, impropriety or perversity in the impugned order passed by the Family Court warranting interference by this Court in exercise of its revisional jurisdiction under Sec.19(4) of the Family Courts Act read with Sec.401 of the Code of Criminal Procedure. The RP(FC) is groundless and without any merit. The revision petitioner is directed to pay entire arrears of the maintenance due as per the impugned order to the respondents within a period of three months from the date of receipt of a copy of this judgment, failing which the respondents will be at liberty to execute the order in accordance with law. The RP(FC) is accordingly dismissed. Sd/- **C.S.DIAS JUDGE** sks/13.1.2020 10 RPFC 216 OF 2014