R.P (FC) No.140 of 2017

1 R.P (FC) No.140 of 2017 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 15[TH] DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, ``` ## **`1945`** ``` RPFC NO. 140 OF 2017 AGAINST THE ORDER/JUDGMENT MC 127/2016 OF FAMILY COURT, ``` ## **`THALASSERY`** ## **`REVISION PETITIONER/S:`** ``` ANANDA KUMAR.M AGED 57 YEARS, S/O.KRISHNADAS, 'DEVISADANAM', NEAR PAPPAN PEEDIKA, THIRUVANGAD AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT-670102. REPRESENTED BY POWER OF ATTORNEY HOLDER, K.K.BHARATHAN, S/O.K.K.BHASKARAN, AGED 69 YEARS, 'DEVISADANAM', P.O.THIRUVANGAD, KANNUR DISTRICT. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.T.K.SANDEEP ``` ## **`RESPONDENT/S:`** ``` SHEEJA.T.C D/O.BALAN, AGED 44 YEARS, 'SAFALLYAM', VADAKKUMBAD P.O., ERANHOLI AMSOM, VADAKKUMBAD DESOM, THALASSERY TALUK, KANNUR DISTRICT-670105. BY ADVS. SMT.M.MANJU SRI.R.SUDHISH SRI.P.B.SAJITH ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.140 of 2017 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.140 of 2017** **----------------------------Dated this the 15[th] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.127/2016 of the Family Court, Thalassery, ordering the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.5,000/- from the date of petition (17.6.2016). The revision petitioner was the respondent and the respondent was the petitioner before the Family Court. ## **Brief facts** 2. The respondent had filed the application under Sec.125 (1) of the Code of Criminal Procedure 3 R.P (FC) No.140 of 2017 (in short, “Code”), against the revision petitioner, seeking monthly maintenance allowance @ Rs.5,000/-. It was her case that she was married to the revision petitioner on 19.4.1999. The revision petitioner has refused to maintain the respondent. The revision petitioner was working as an electrician in the Gulf and was earning Rs.1,00,000/- per month. Hence, the application. 3. The revision petitioner filed a written objection denying the allegations in the application. He contended that the respondent treated him with cruelty. She secured an ex-parte decree of divorce against the revision petitioner. It is the respondent who deserted the revision petitioner and has misappropriated his earnings. The revision petitioner 4 R.P (FC) No.140 of 2017 is unable to do any job due to his age related disease. Consequent to the decree of divorce, the revision petitioner has remarried. It is only to harass the revision petitioner that the respondent has filed the present application. Hence, the application may be dismissed. 4. The respondent was examined as PW1 and the revision petitioner was examined as RW1. The decree of divorce passed by the Family Court was marked as Ext D1. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application as observed earlier. 5 R.P (FC) No.140 of 2017 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri.Arjun Sreedhar, the learned counsel appearing for the revision petitioner and Smt.M.Manju, the learned counsel appearing for the respondent. 8. When the revision petition was taken up for consideration, the learned counsel appearing for the revision petitioner submitted that the revision petitioner is no more. None of his near relatives have come on record. Hence, the revision petition may be dismissed as abated. 9. The Hon’ble Supreme Court in **Ramesan vs State of Kerala** [2020 (3) SCC 45], which has been followed by this Court in **Mohammed @ Kunjalan** 6 R.P (FC) No.140 of 2017 **vs. Sub Inspector of Police** [ 2020 KHC 5587] has gone on to hold that if there is a composite sentence of imprisonment and fine, then the revision petition will not abate. Nonetheless, a reasonable time period is to be granted to the near relatives of the deceased to come on record, and if they do not come on record, the revision petition is to be disposed of on merits. 10. In the instant case, the Family Court has directed the revision petitioner to pay monthly maintenance allowance to the respondent @ Rs.5,000/- . 11. Sub-sec (3) of Sec.125 of the Code stipulates that the maintenance amount ordered to be paid under Sec.125 has to be realised as per the procedure for levy of fine. Hence, an order of 7 R.P (FC) No.140 of 2017 maintenance is treated as a fine. In view of the above principle, the revision petition cannot be dismissed as abated and the same is to be decided on merits. 12. Is there or any illegality, impropriety irregularity in the impugned order? 13. Admittedly, the respondent was married to the revision petitioner on 19.4.1999 . It is also on record that the marriage between the revision petitioner and the respondent was dissolved by Ext D1 decree dated 2.5.2013 by the same Family Court in OP No.63/2013. Therefore, on the date of determination of the application, the respondent was the divorced wife of the revision petitioner. A 8 R.P (FC) No.140 of 2017 divorced wife is entitled to maintenance under Sec.125 of the Code. 14. The respondent’s case was that the revision petitioner was employed as an electrician abroad and was earning Rs.1,00,000/- per month and she does not have the means to maintain herself. Hence, she is entitled to maintenance @ Rs.5,000/-. 15. Even though the revision petitioner contended that the respondent was having means to maintain herself, there is nothing on record to prove the said aspect. Therefore, I am of the definite view that the finding of the Family Court, that the respondent does not have means to maintain herself, is correct and sustainable. 9 R.P (FC) No.140 of 2017 16. 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. 17. 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. 10 R.P (FC) No.140 of 2017 18. 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. 19. It is well settled in a plethora of judgments that the Courts are permitted to do some guesswork 11 R.P (FC) No.140 of 2017 in arriving at the notional income of the husband/father and fixing the quantum of maintenance. 20. The revision petitioner’s defence was that he does not have any job or income to maintain the respondent. Admittedly, consequent to Ext D1 decree of divorce, the revision petitioner has remarried. The revision petitioner was aged 56 years at the time of filing of the application. There is nothing on record to prove that he is suffering from ailment or All the above any disability. circumstances prove that he is an able bodied person. An able bodied person in the year 2016, by any stretch of imagination, would have earned Rs.1,000/per day as a daily labourer and got employment for at 12 R.P (FC) No.140 of 2017 least twenty five days in a month. Hence, I fix the notional income of the revision petitioner @ Rs.25,000/-. In the above background, I am of the view that the quantum of monthly maintenance fixed by the Family Court @ Rs.5,000/- is reasonable and justifiable. 21. On an overall consideration of the pleadings and materials on record and the law on the point, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merits and is only liable to be dismissed. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has 13 R.P (FC) No.140 of 2017 deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order. sd/- sks/15.12.2023 **C.S.DIAS, JUDGE**