R.P (FC) No.79 of 2017

1 R.P (FC) No.79 of 2017 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ``` RPFC NO. 79 OF 2017 ``` ``` AGAINST THE ORDER/JUDGMENT MC 36/2010 OF FAMILY COURT, KALPETTA ``` ## **`REVISION PETITIONER/S:`** ``` SAJI,AGED 34 YEARS, S/O.KUNHIMUHAMMED, VALLAMPARAMBIL, PINANGODU P O, ACHOORANAM AMSOM, VAITHIRI TALUK, WAYANAD DISTRICT, PIN-673121, KERALA BY ADVS. SRI.C.V.MANUVILSAN SMT.K.VIDYA SRI.VINODE V. LUKA ``` ## **`RESPONDENT/S:`** ``` 1KHAMARUNEESA,AGED 27 YEARS AGED 27 YEARS, D/O.MOIDU, CHAKKORATH HOUSE, THARUVANA PO, PORUNNANNOOR AMSOM, MANANTHAVADY TALUK, WAYANAD DISTRICT- 670732 , KERALA 2NAZEER MUNNA, MINOR,AGED 7 YEARS, D/O.KHAMARUNNEESA, CHAKKORATH HOUSE, THARUVANA PO, PORUNNANNOOR AMSOM, MANANTHAVADY TALUK, WAYANAD DISTRICT-670732 , KERALA, REPRESENTED BY IST RESPONDENT KHAMARUNEESA 3NUSHIBHA MINOR,AGED 4 YEARS, D/O.KHAMARUNNEESA, CHAKKORATH HOUSE, THARUVANA PO, PORUNNANNOOR AMSOM, MANANTHAVADY TALUK, WAYANAD DISTRICT-670732 , KERALA, REPRESENTED BY IST RESPONDENT KHAMARUNEESA BY ADV SRI.M.MUHAMMED SHAFI ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.79 of 2017 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.79 of 2017** **-----------------------------** ## **Dated this the 21[st] day of November, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.36/2010 of the Family Court, Kalpetta, directing the revision petitioner to pay monthly maintenance allowance @ Rs.2,000/- each to the respondents 2 and 3 – his children – from the date of petition. 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.79 of 2017 “Code”), seeking monthly maintenance allowance from the revision petitioner @ Rs.3,500/- to the first respondent and Rs.2,000/- each to the respondents 2 and 3. It was their case that the first respondent was the wife of the revision petitioner and the respondents 2 and 3 are the children born in the wedlock. The revision petitioner has driven away the respondents from the matrimonial home. The respondents do not have any means to maintain themselves. The revision petitioner is working in Gulf and is also doing business in India and is earning approximately Rs.75,000/- per month. The first respondent had filed MC No.35/2009 before the Judicial First Class Magistrate Court-I, Mananthavady, seeking for monetary reliefs. The petitioners are unable to maintain themselves, and, therefore, the revision 4 R.P (FC) No.79 of 2017 petitioner is liable to maintain them. Hence, the application. 3. The revision petitioner filed a written objection refuting the allegations in the application. He contended that the respondents had filed MC No.35/2009 before the jurisdictional Magistrate seeking an identical relief. In the said case, the learned Magistrate had ordered the revision petitioner to pay monthly maintenance allowance to the first respondent @ Rs.3,000/- per month and Rs.2,000/- each to the respondents 2 and 3. He denied the allegation that he had treated the first respondent with matrimonial cruelty. He had to surrender his passport as ordered by the learned Magistrate in MC No.35/2009. Therefore, he is unable to return to the Gulf and continue his employment. The 5 R.P (FC) No.79 of 2017 revision petitioner does not have any means to maintain the respondents. Hence, the application may be dismissed. 4. The first respondent was examined as PW1 and Exts A1 to A8 were marked through her in evidence. The revision petitioner and two other witnesses were examined as RW1 and CPWs 1 and 2 and Exts B1 and B2 were marked on his side. 5. When the application was taken up for final hearing, the learned counsel appearing for the respondents before the Family Court submitted that the respondents were confining the application to the maintenance allowance of the respondents 2 and 3 only. 6. Based on the above submission, the Family Court, after analysing the pleadings and materials on 6 R.P (FC) No.79 of 2017 record, by the impugned order, partly allowed the application by directing the revision petitioner to pay monthly maintenance allowance to the respondents 2 and 3 @ Rs.2,000/- each from the date of application. 7. It is assailing the said order; the revision petition is filed. 8. Heard; Sri.C.V Manuvilsan, the learned counsel appearing for the revision petitioner and Sri.Muhammed Shafi , the learned counsel appearing for the respondents. 9. The learned counsel appearing for the revision petitioner submitted that the Family Court has gone wrong in directing the revision petitioner to pay monthly maintenance allowance to the respondents 2 and 3 after taking note of the fact that the revision petitioner had surrendered his passport in MC No.35/2009. Therefore, 7 R.P (FC) No.79 of 2017 the revision petitioner is unable to continue with his employment. Hence, the revision petition may be allowed. 10. Is there or any illegality, impropriety irregularity in the impugned order? 11. The respondents had filed the application seeking monthly maintenance allowance from the revision petitioner on the allegation that the revision petitioner has refused to maintain the respondents despite having sufficient means. 12. The revision petitioner’s principal defence was that since the learned jurisdictional Magistrate had ordered him to surrender his passport, he is prevented from continuing his assignment abroad. 8 R.P (FC) No.79 of 2017 13. On a perusal of the materials on record, it is seen that the Family Court had accepted the defence of the revision petitioner and had dismissed the application. However, in a revision petition filed by the respondents, this Court in RPFC No.151/2011, set aside the order of the Family Court and remitted the matter for fresh consideration. 14. Admittedly, on the basis of the submission made by the first respondent that she does not want maintenance, in view of Ext.B2 agreement entered between the parties, the Family Court confined the application to the monthly maintenance allowance to the respondents 2 and 3. 9 R.P (FC) No.79 of 2017 15. The revision petitioner does not dispute the fact that the respondents 2 and 3 are his children born in the wedlock with the first respondent. 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 10 R.P (FC) No.79 of 2017 the constitutional sweep of Article 15(3) and reinforced by Article 39. 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, husband was 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. 11 R.P (FC) No.79 of 2017 19. It is well settled in a catena of decisions that the Courts are permitted to do some guesswork to arrive at the quantum of maintenance. 20. In the instant case, all that the revision petitioner has contended is that, since his passport was surrendered before the jurisdictional Magistrate, he was prevented from continuing with his employment abroad. 21. Going by the law laid down in **Bhuwan Mohan Singh** (supra), the revision petitioner was bound to do physical labour and maintain the respondents 2 and 3 – his minor children. The revision petitioner was only aged 33 years at the time of filing the application. He has not produced any material to substantiate that he had any physical or mental disability. Therefore, the revision petitioner is deemed to be an able bodied person. An 12 R.P (FC) No.79 of 2017 able-bodied person at that point of time is assumed to have earned not less than Rs.20,000/- per month. Therefore, I am of the definite view that the order passed by the Family Court directing the revision petitioner to pay his children an amount of Rs.4,000/- per month is reasonable and justifiable. 22. 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.79 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 arrears of maintenance as per the impugned order. sd/- sks/21.11.2023 **C.S.DIAS, JUDGE**