R.P (FC) No.419 of 2016

1 R.P (FC) No.419 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 30[TH] DAY OF NOVEMBER 2023 / 9TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 419 OF 2016 AGAINST THE ORDER/JUDGMENT IN MC 113/2010 OF THE FAMILY ``` ## **`COURT,ERNAKULAM`** ## **`REVISION PETITIONER/S:`** ``` JOSEPH LAIJU,AGED 39 YEARS S/O.K.J.XAVIER, KOTTAPARAMBU HOUSE, KUMBALANGI P.O., KOCHI - 682 007. BY ADVS. SRI.G.KRISHNAKUMAR SMT.M.L.REMYA SRI.B.S.SURAJ KRISHNA ``` ## **`RESPONDENT/S:`** ``` 1MARY LINSA K.S. AGED 32 YEARS, D/O.STANLY, KANDATHIPRAMBIL HOUSE, KUMBALANGI P.O., KOCHI - 682 007. 2RENZO STENSTAUOS AGED 4 YEARS, S/O.MARY LINSA, KANDATHIPRAMBIL HOUSE, KUMBALANGI P.O., KOCHI - 682 007 REP. BY THE FIRST INFORMATION RESPONDENT MOTHER AND NEXT FRIEND BY ADVS. SRI.JOHNSON ABRAHAM SRI.NELSON ABRAHAM ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.419 of 2016 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.419 of 2016** **----------------------------Dated this the 30[th] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.113/2010 of the Family Court, Ernakulam, ordering the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.10,000/- each from the date of application. 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 Sec.125 of the Code of Criminal Procedure (in short, 3 R.P (FC) No.419 of 2016 “Code”), inter alia, asserting that the first respondent was married to the revision petitioner on 21.9.2008. The second respondent was born in the wedlock on 13.7.2009. Right from the initial dates of marriage, the revision petitioner used to assault the first respondent while being in an intoxicated state. He used to frequently demand more dowry from the first respondent’s parents and question her chastity without any foundation or basis. At the time of marriage, the first respondent was employed as Librarian in Slehha College of Professional Studies and was earning Rs.4,575/ per month. The revision petitioner used to misappropriate the entire salary of the first respondent. He prevented the first respondent from visiting her parental home. He also did not permit her to attend any 4 R.P (FC) No.419 of 2016 functions or ceremonies. On 22.1.2009, the revision petitioner left the first respondent in front of the hospital and thereafter he has not cared to take care of her. During this period, the first respondent conceived the second respondent. The entire expenses for the delivery of the second respondent was met by the parents and brothers of the first respondent. The revision petitioner has not cared to see the second respondent. He has paid Rs.1,250/- per month as maintenance pursuant to the order of the Judicial Magistrate of First Class-II in Crl.M.C No.18/2009. The second respondent is only aged 9 years. The first respondent does not have the means to maintain herself and the second respondent. The respondents are depending on the first respondent’s brother for their livelihood. The revision petitioner is a 5 R.P (FC) No.419 of 2016 company employee and is earning a monthly salary of more than Rs.15,000/- and he is in a position to maintain the respondents by paying them Rs.2,500/each per month . Hence, the application. 3. The revision petitioner filed a written objection denying the allegations in the application. He contended that he had never compelled the first respondent to give up her job. There was no such incident as alleged in the application. The first respondent was living separately from him since 22.1.2009 without any sufficient reason or cause. Therefore, she is not entitled for any amount as maintenance. The amount ordered by the learned Magistrate is sufficient to maintain herself. Hence, the application may be dismissed. 6 R.P (FC) No.419 of 2016 4. The Family Court allowed the application by ordering the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.1,500/- and Rs.2,500/- per month, respectively. 5. Aggrieved by the said order, the revision petitioner filed RP(FC) No.304/2013 before this Court principally on the ground that the Family Court had dismissed M.P Nos 401 and 402 of 2013 filed by the revision petitioner, to re-open the evidence and issue summons to the additional witnesses. 6. This Court, by order dated 16.12.2015, allowed the revision petition by way of remand and permitted both parties to file fresh application before the Family Court and the application to be disposed of in 7 R.P (FC) No.419 of 2016 accordance with law. The revision petitioner was directed to deposit Rs.1,00,000/- towards the arrears of interim maintenance. 7. Consequent to the remand, the respondents filed M.P No.83/2016 alleging that the revision petitioner had illegally retained all the first respondent’s educational certificates. Furthermore, the revision petitioner was employed as a Senior Supervisor in a Multi National company and was drawing Rs.50,000/per month. In addition to the same, he was also doing real estate business and was earning Rs.1,00,000/- per month. Moreover, he had inherited a property to his and was belonging grandfather getting Rs.50,000/- per month from the property. In view of the increase in the income of the revision petitioner, the 8 R.P (FC) No.419 of 2016 respondents were entitled to monthly maintenance @ Rs.15,000/- per month. 8. Consequent to the remand, the first respondent was examined as PW1 and Exts A1 to A4 were marked on her side. The revision petitioner and a witness were examined as RWs 1 and 2 and Exts B1 to B5 were marked on his side. 9. The Family Court, after reappreciating the pleadings and materials on record, by the impugned order partly allowed the application by directing the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.10,000/- each from the date of application. 9 R.P (FC) No.419 of 2016 10. It is assailing the said order; the revision petition is filed. 11. Heard; Sri.G.Krishnakumar, the learned counsel appearing for the revision petitioner and Sri.Nelson Abraham, the learned counsel appearing for the respondents. 12. The learned counsel for the revision petitioner vehemently argued that the Family Court has failed to consider that the first respondent was qualified and was employed in a College, which aspect was confronted and proved through her by Exts B4 and B5 certificates. Moreover, going by the language of Sec.125 of the Code, it is not sufficient that the respondents state that they have no means. Instead, it is imperative that the respondents plead and prove that they are unable to 10 R.P (FC) No.419 of 2016 maintain themselves. The respondents have failed to establish the necessary ingredients of Sec.125 of the Code. Hence, the application has to be rejected. He relied on the decision of this Court in **Mammad Kunhi vs.Rukhiya** [1978 KHC 211] and the decision of the Karnataka High Court in **Nagamallappa K.M vs. B.J Lalitha and another** [1985 KHC 1127] to substantiate his contention that if a person is wiling to maintain his wife in accordance with civil obligation, it can never be said there is neglect or refusal on the part of the husband. He prayed the revision petition be allowed and the impugned order be set aside. 13. The learned counsel for the respondents defended the impugned order and argued that, as the revision petitioner had failed to produce his salary 11 R.P (FC) No.419 of 2016 certificate, adverse inference was drawn against him. Hence, the revision petition may be dismissed. 14. Is there or any illegality, impropriety irregularity in the impugned order? 15. The revision petitioner admits his marriage with the first respondent and the paternity of the second respondent. 16. The pivotal question to be decided in the revision petition is the quantum of maintenance payable by the revision petitioner. 17. The revision petitioner’s principal defences were that the first respondent was living separately from him without sufficient cause and that she was working in the Kerala University of Fisheries and Ocean Sciences and subsequently as a Librarian in Santacruz Public 12 R.P (FC) No.419 of 2016 School, Eramalloor. Therefore, the respondent was not entitled to any amount as maintenance. 18. The respondent’s specific case in the application was that the revision petitioner was working as a Senior Supervisor in a multi national company and was earning Rs.50,000/- per month. He was also doing real estate business and was earning from his properties @ Rs.1,50,000/- per month. 19. Although the revision petitioner mounted the box and got himself examined as RW1, he failed to produce his salary certificate or any scrap of paper to prove his income. He also did not give any cogent reason for the non-production of the above certificates. Therefore, necessarily, adverse inference has to be 13 R.P (FC) No.419 of 2016 drawn against him and hold that the revision petitioner was earning income as stated by the respondents. 20. The revision petitioner also had a case that the first respondent was qualified and employed and, therefore, she had the means to maintain herself. But, the first respondent's case was that the revision petitioner had illegally retained her educational certificates. 21. In **Sunita Kachwaha and others v. Anil Kachwaha** [2014 KHC 4690], the Hon'ble Supreme Court has held that merely because the wife is a postgraduate, it would not be sufficient to hold that she is in a position to maintain herself. Even if, she is earning something, the same cannot be a ground to reject the wife’s application for maintenance. 14 R.P (FC) No.419 of 2016 22. The above view has again been reiterated by the Hon'ble Supreme Court in **Shailja and another vs Khobbanna** [2017 KHC 2725] by holding that merely because the wife is capable of earning, it is not sufficient to reduce the maintenance awarded to her. 23. On going through the pleadings and materials on record, it is evident that the revision petitioner was not in a position to establish that the first respondent was having a permanent employment and had sufficient means to maintain herself. Therefore, I am of the view that the revision petitioner has failed to prove that the first respondent was employed. 24. The learned counsel for the revision petitioner further argued that the respondents have not pleaded 15 R.P (FC) No.419 of 2016 the necessary ingredients to maintain the application under Section 125 of the Code. 25. A proceeding under Sec.125 of the Code is summary in nature. In **Sunita Kachwaha** (supra) **,** it is observed that in a proceeding under Sec.125 of the Code, it is not necessary for the Court to ascertain as to who was in wrong and go into the minute details of the matrimonial dispute like a civil proceeding. Thus, I hold that the assertions in the two applications are sufficient to substantiate the ingredients of Section 125 of the Code. 26. In addition to the above, the revision petitioner has a further case that the first respondent was living separately from him without sufficient cause. There is no material on record to prove that the revision 16 R.P (FC) No.419 of 2016 petitioner had made an effort to resume cohabitation with her by filing a petition for a decree for restitution of conjugal rights. 27. On an appreciation of the materials placed on record, it is seen that the revision petitioner had filed a memo before the Family Court stating that he does not want to have an access to his child. This again proves that the revision petitioner was not interested to live with the respondents. 28. 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, 17 R.P (FC) No.419 of 2016 so as to prevent them from falling into destitution and vagrancy. 29. 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. 30. 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 18 R.P (FC) No.419 of 2016 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. 31. After bestowing my anxious consideration to the pleadings and materials on record, particularly the fact that the revision petitioner had failed to produce his salary certificate, it is only to be held that the Family Court has rightly drawn adverse inference against the revision petitioner and directed him to pay monthly maintenance allowance to the respondents @ Rs.10,000/- each, which is reasonable and justifiable. The respondents have the legal right and the revision 19 R.P (FC) No.419 of 2016 petitioner has a sacrosanct duty to maintain the respondents/his wife and child, to permit them to live in his same status and the standard of living. Thus, I do not find any illegality, irregularity or impropriety in the impugned order warranting interference by this Court under Sec.19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merits and is only liable to be dismissed. However, I make it clear that, if the revision petitioner is paying any amount as maintenance to the first respondent as per any earlier order, then he is entitled for adjustment of the amount with the amount ordered by the Family Court, in view of the law laid down by the Hon'ble Supreme Court in **Rajnesh v. Neha.[2020 (6) KHC 1].** 20 R.P (FC) No.419 of 2016 Resultantly, The revision petition is dismissed. Needless to mention that, if the revision petitioner has already deposited any amount pursuant to the orders of the Family Court and this Court, he would be entitled to adjust the deposited amount while paying the balance arrears of maintenance. **sd/-** sks/30.11.2023 **C.S.DIAS, JUDGE**