Renjith K. Nair and Ratheesh K. Nair v. R. Krishnan Nair

1 RP(FC) 255 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.255 OF 2014** **AGAINST THE ORDER/JUDGMENT IN MC 140/2010 OF FAMILY COURT, THIRUVALLA** ## **REVISION PETITIONER/S:** **1 RENJITH K. NAIR, AGED 29 YEARS S/O.R.KRISHNAN NAIR, KRISHNA KRIPA HOUSE, KAVUMBHAGOM P.O. & VILLAGE, KIZHAKKUMMURI KARA, THIRUVALA TALUK & MUNICIPALITY, PATHANAMTHITTA DISTRICT.** **2 RATHEESH K.NAIR AGED 27 YEARS S/O.R.KRISHNAN NAIR, KRISHNA KRIPA HOUSE, KAVUMBHAGOM P.O. & VILLAGE, KIZHAKKUMMURI KARA, THIRUVALA TALUK & MUNICIPALITY, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.ABRAHAM SAMSON SMT.LOVELY SAMSON** ## **RESPONDENT/S:** **R. KRISHNAN NAIR AGED 63 YEARS KRISHNA KRIPA HOUSE, KAVUMBHAGOM P.O & VILLAGE, THIRUVALLA MUNICIPALITY AND TALUK, KIZHAKKUMMURI KARA, PATHANAMTHITTA DISTRICT, NOW RESIDING AT SHANTHINI MAHAL LODGE, POWER HOUSE JUNCTION, VYTILLA, ERNAKULAM DISTRICT -682 019.** ## **R1 BY ADV. SRI.K.N.RADHAKRISHNAN(THIRUVALLA)** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 RP(FC) 255 OF 2014 ## **ORDER** The revision petitioners are the respondents in M.C No.140/2010 on the file of the Family Court, Thiruvalla. The respondent in this revision petition is the petitioner in the maintenance case (M.C). 2. The respondent, the father of the revision petitioners, had filed the M.C before the Family Court on the assertion that he is suffering from heart disease and that he is unable to maintain himself. According to him, even though he is a driver by profession, he is unable to carry on with his avocation. The first revision petitioner is employed in the Sulthanate of Oman and he is getting a monthly salary of Rs 40,000/-. The second revision petitioner is also working abroad and getting a salary of Rs 20,000/-. The revision petitioners have willfully neglected to maintain the respondent, since November, 2009. The respondent has no means to maintain himself. He requires an amount of Rs 6,000/- per month to meet his maintenance expenses. Even though the revision 3 RP(FC) 255 OF 2014 petitioners have means to maintain him, they refused. Hence, he was constrained to file the M.C. 3. The M.C was stoutly resisted by the revision petitioners, who admitted that the respondent is their father. However, they contended that the respondent has married many women and he has not spent any amount for the marriage of his daughter. He had earlier filed a petition seeking a decree of divorce against his wife, which was subsequently dismissed. The respondent is a habitual drunkard and has got afflicted with illness only due to his alcoholic traits. Hence he is not entitled to maintenance from the revision petitioners. 4. The respondent was examined as PW1 and Exts A1 to A10 were marked through him. The first revision petitioner and his mother were examined as CPW1 and CPW2 and Exts B1 and B2 were marked on their side. 5. The Family Court after considering the pleadings and evidence on record, partly allowed the M.C by directing the revision petitioners to pay an amount of 4 RP(FC) 255 OF 2014 Rs 1,500/- and Rs 2,000/- each per month, respectively, to the respondent. 6. It is challenging the impugned order ordering the revision petitioners to pay the above said amounts as monthly maintenance to the respondent that the present RP(FC) is filed. 7. Heard Sri. Abraham Samson, the learned counsel for the revision petitioners and Sri.K.N.Radhakrishnan, the learned counsel for the respondent. 8. The learned counsel for the revision petitioners argued that this Court by its interim oder dated 14.7.2014 directed the revision petitioners to deposit an amount of Rs 25,000/- before the Family Court, but further directed that the amount shall be permitted to be withdrawn by the respondent only after the disposal of M.C. No.317/2012; a case filed by the revision petitioners' mother, the wife of the respondent, before the same Family Court, seeking maintenance from the respondent. According to the learned counsel for the revision 5 RP(FC) 255 OF 2014 petitioners, the Family Court by its order dated 30.7.2015 in M.C 317/2012 has directed the respondent to pay monthly maintenance allowance to his wife at the rate of Rs 3,000/-. The learned counsel thus contended that the findings in the said subsequent order stares at the respondent and he is precluded from contending that he is not in a position to maintain himself. The learned counsel argued that this revision petition has to be remanded back to the Family Court on the sole ground that the Family Court in the subsequent proceeding has taken a contradictory view, that the respondent has the means to maintain his wife. 9. The learned counsel for the revision petitioners further argued that the respondent is a driver by profession, but he is a drunkard. He is maintaining an illicit relationship with another woman. Annexure A2 complaint has been produced in this RP(FC), which was obtained by the revision petitioners under the Right to Information Act. In the complaint also, it is pointed out that the respondent is a habitual drunkard, and is leading 6 RP(FC) 255 OF 2014 an immoral life. The learned counsel further argued that the respondent has the means to maintain himself, so there is no necessity to direct the revision petitioners to pay maintenance at the rate of Rs 3,500/- per month to the respondent. Therefore, the impugned order passed by the Family Court is erroneous and illegal, and is liable to be set aside. 10. The learned counsel for the respondent on the other hand argued that, the Family Court had arrived at the conclusion in the impugned order after going through Exts A1 to A10, and the oral testimony of the witnesses. The respondent who was driver by profession is disabled from carrying on his profession due to heart disease, which he is suffering from 2001 onwards. The learned counsel further argued that Annexure A2 complaint produced in this RP(FC) is not proved, and that the same is only a complaint which was never been shown to the respondent. The respondent was driven away from the matrimonial home and that he is not in a position to maintain himself. The order passed by the Family Court 7 RP(FC) 255 OF 2014 is perfectly legal, and that the RP(FC) is only liable to be dismissed. 11. The Hon'ble Supreme Court in **Pyla Mutykamma @ Satyavathi vs Pyla Suri Demudu & another [(2011) 12 SCC 189]** has categorically declared the law that, High Courts in exercise of its revisional jurisdiction are not expected to reassess and reappreciate the entire evidence and substitute the findings of the Family Court in a proceedings under Sec.125 of the Code of Criminal Procedure. 12. It is admitted that the respondent is the father of the revision petitioners. The Family Court after going through Exts A1 to A10 documents had come to a conclusion that the respondent is suffering from heart disease. He is under continuous treatment as evidenced in Exts A5 to A7. It is also brought out in evidence that the respondent due to his illness is unable to carry out his avocation. The only contention of the revision petitioners before the Family Court and this Court is that the respondent is in a position to maintain himself, and that 8 RP(FC) 255 OF 2014 he is living separately from their mother without any sufficient reason or cause. 13. The respondent on the other hand proved that both the revision petitioners are employed abroad and both of them are earning more than Rs 40,000/- and Rs 20,000/-, respectively. It is after considering the affluence of the revision petitioners and the illness of the respondent that the Family Court found that the respondent is unable to maintain himself, therefore, the revision petitioners are liable to maintain their father at the rate of Rs 3,500/- per month. 14. Coming to the contention argued by the counsel for the revision petitioners that in a subsequent proceeding, i.e. in M.C 317/2012 the same Family Court by order dated 30.7.2015 has directed the respondent to pay an amount of Rs 3,000/- to his wife, the mother of the revision petitioners, hence it is to be assumed that the respondent is an able bodied person and is in a position to maintain himself, therefore, the impugned order is liable to be set aside. I am unable to agree with the said 9 RP(FC) 255 OF 2014 argument. If the revision petitioners have such a case that there are contradictory findings rendered by the Family Court in two proceedings, the revision petitioners would have to approach the Family Court under Sec.127 of the Code of Criminal Procedure seeking for cancellation of the order already passed. According to me, both the proceedings are independent and self-existent. Merely because the Family Court has ordered the respondent to maintain his wife in the subsequent proceeding, it will not exonerate the liability of the revision petitioners to maintain their father – the respondent. The interim order passed by this Court has not decided the faith of the impugned order. At any rate this Court is not expected to appreciate the entire findings of the Family Court in the subsequent proceeding, which is not a subject matter of this RP(FC), for setting aside the impugned order. Similarly, Annexure A2 complaint relied on by the learned counsel for the revision petitioners, to substantiate the immorality and vices of the respondent, cannot be considered in this RP(FC). The M.C cannot be remanded 10 RP(FC) 255 OF 2014 back to the Family Court for fresh consideration, as sought by the learned counsel for the revision petitioners. It is for the revision petitioners to move the Family Court, and get the document proved in the right royal manner, and seek for modification of the impugned order. This Court cannot in RP(FC) decide the genuineness and authenticity of Annexure A2 complaint, that too without the same being proved in evidence after affording the respondent an opportunity to cross examine the author of the complaint. 15. Having gone through the impugned order, pleadings and evidence on record, I am satisfied that the Family Court has rightly come to the inescapable conclusion that the respondent is unable to maintain himself, and that the revision petitioners, who are affluently employed, are liable to maintain their father, as provided under Sec.125 of the Code of Criminal Procedure. 16. The revision petitioners case that their father is living in adultery, is not a ground available to them 11 RP(FC) 255 OF 2014 to seek for modification of the order. 17. In light of my findings above, I do not find any illegality, irregularity or impropriety 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. Therefore, this RP(FC) is dismissed confirming the impugned order passed in M.C No.140/2010. It is made clear that the revision petitioners shall be directed to pay the entire arrears of maintenance due under the impugned order, before a petition under Sec.127 of the Code of Criminal Procedure is entertained by the Family Court. **Sd/-** **C.S.DIAS** SKS/14.1.2020 **JUDGE** 12 RP(FC) 255 OF 2014 ## **APPENDIX** ## **REVISION PETITIONERS ANNEXURES** **A1-TRUE COPY OF THE REPLY SENT BY THE DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA, DATED 11.2.2014** **A2-TRUE COPY OF THE COMPLAINT RECEIVED BY THE PETITIONER AS PER THE ABOVE REPLY DATED 30.12.2013** ## **RESPONDENTS ANNEXURES** **NIL** 13 RP(FC) 255 OF 2014