RP (FC) Nos.349 and 350 of 2016

1 R.P (FC) Nos.349 and 350 of 2016 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 349 OF 2016 ``` ``` AGAINST THE ORDER/JUDGMENT MC 75/2015 OF FAMILY COURT, ``` ## **`THALASSERY`** ## **`REVISION PETITIONER/S:`** ``` ANEESHAN,AGED 37 YEARS, S/O. PURUSHOTHAMAN,THOKILANGADI, PO., KUTHUPARAMBA,THALASSERY 670643 BY ADVS. SRI.P.P.RAMACHANDRAN SRI.P.RAHUL ``` ## **`RESPONDENT/S:`** ``` ANANYA C. AGED 6 YEARS (MINOR)REP. BY MOTHER NISHA C.,NARAYANA NILAYAM, KAITHERI KAPPANA,PO. NIRMALAGIRI, THALASSERY-670701 ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11.12.2023 ALONG WITH RPFC 350/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) Nos.349 and 350 of 2016 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 350 OF 2016 AGAINST THE ORDER/JUDGMENT MC 77/2015 OF FAMILY COURT, ``` ## **`THALASSERY`** ## **`REVISION PETITIONER/S:`** ``` ANEESHAN AGED 37 YEARS S/O.PURUSHOTHAMAN, THOKILANGADI, P.O.KUTHUPARAMBA, THALASSERY - 670 643. BY ADVS. SRI.P.P.RAMACHANDRAN SRI.P.RAHUL ``` ## **`RESPONDENT/S:`** ``` 1NISHA C AGED 35 YEARS W/O.ANEESHAN, NARAYANA NILAYAM, KAITHERI KAPPANA P.O., NIRMALAGIRI, THALASSERY TALUK, KANNUR 670 643. 2AGIL , (MINOR) AGED 11 YEARS REPRESENTED BY HIS MOTHER NISHA.C – FIRST RESPONDENT, NARAYANA NILAYAM, KAITHERI KAPPANA P.O., NIRMALAGIRI, THALASSERY TALUK, KANNUR 670 643. ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11.12.2023 ALONG WITH RPFC 349/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 R.P (FC) Nos.349 and 350 of 2016 ## **C.S DIAS,J.** **--------------------------R.P (FC) Nos.349 and 350 of 2016 ----------------------------Dated this the 11[th] day of December, 2023** ## **COMMON ORDER** As these revision petitions are filed challenging the common order in M.C Nos.75 and 77 of 2015 and arise between the same parties, they are being disposed of by the common order. RP(FC) No.349/2016 is filed challenging the order in MC No.75/2015 and RP(FC) No.350/2016 is filed challenging the order in M.C No.77/2015. For the sake of convenience, the parties are referred to as per their status before the Family Court. 4 R.P (FC) Nos.349 and 350 of 2016 ## **Brief facts** 2. The revision petitioner was married to Nisha.C and in their wedlock two children named, Agil and Ananya were born. The marital relationship got strained. The wife and children filed M.C No.252/2011 before the Family Court, against the revision petitioner, seeking an order of separate maintenance allowance. During the course of the proceedings, the parties were referred to the Lok Adalath and the revision petitioner agreed to pay monthly maintenance allowance to the wife @ Rs.900/-, to the older child @ Rs.600/- and to the younger child @ Rs.500/-. Accordingly, the Family Court allowed M.C No.252/2011. Subsequently, the wife and older child filed MC No.77/2015 and the child filed MC younger 5 R.P (FC) Nos.349 and 350 of 2016 No.75/2015 under Sec.127(1) of the Code of Criminal Procedure (in short, “Code”), seeking for enhancement of maintenance allowance @ Rs.5,000/-, Rs.4,000/and Rs.3,000/- respectively. It was their common case that subsequent to the settlement arrived at before the Adalath, the children have started studying and the wife and children do not have the means to maintain themselves. The revision petitioner is an expert auto mobile mechanic and is earning Rs.40,000/- per month. Therefore, he is liable to pay enhanced maintenance allowance to the wife and children as sought for in the applications. 3. The revision petitioner resisted both the applications by filing separate counter statements. However, he admitted the marriage as well as the 6 R.P (FC) Nos.349 and 350 of 2016 paternity of the children. He contended that the children were studying in Anganwadi and getting free food and education. Thus, there has been no change of circumstances in three years after the passing of the award by the Adalath. He admitted that he was working as a vehicle mechanic in Hi-tech Motors and was only drawing a salary of Rs.4,000/- per month. However, he lost his job due to the pain in his legs. He has no regular source of income. The applications are filed only to harass the revision petitioner. He has to look after his aged parents. Hence, the applications may be dismissed. 4. The Family Court consolidated and jointly tried both the applications. 7 R.P (FC) Nos.349 and 350 of 2016 5. The wife was examined as PW1 and the revision petitioner was examined as RW1. 6. The Family Court, after appreciating the pleadings and materials placed on record, by the impugned common order, partly allowed the applications by ordering the revision petitioner to pay monthly maintenance allowance @ Rs.2,500/- to the wife, Rs.4,000/- to the older child and Rs.3,000/- to the younger child. 7. It is assailing the said common order; the present revision petitions are filed. 8. Heard; Sri.P.P Ramachandran, the learned counsel appearing for the revision petitioner. Even though notice has been served on the respondents, there is no appearance for them. 8 R.P (FC) Nos.349 and 350 of 2016 9. Is there or any illegality, impropriety irregularity in the impugned common order? 10. The revision petitioner admits that he was married to Nish.C and the children were born in the wedlock. He also does not dispute the fact that he had agreed to maintain the wife and children @ Rs.900/-, Rs.600/- and Rs.500/- respectively, and the order in MC No.252/2011 was passed. It is after four years that the wife and children filed M.C Nos.75 and 77 of 2015, under Sec.127(1) of the Code, for enhancement of maintenance on the ground of change of circumstances. 9 R.P (FC) Nos.349 and 350 of 2016 11. The case of the wife and children was that the revision petitioner was an expert auto mobile mechanic and was earning Rs.40,000/- per month. 12. The revision petitioner’s defence was that although he is an auto mobile mechanic, due to the pain in his legs, he could not carry on his avocation. Moreover, the children were getting free education and food from their school. Therefore, there is no change of circumstances and he is not liable to pay enhanced maintenance allowance. 13. Indisputably, there is no material on record to substantiate that the revision petitioner was suffering from any disability or ailment. Therefore, he is deemed to be an able bodied person. 10 R.P (FC) Nos.349 and 350 of 2016 14. 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. 15. 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. 11 R.P (FC) Nos.349 and 350 of 2016 16. 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. 17. It is well settled in a plethora of judgments that the Courts are permitted to do some guesswork in 12 R.P (FC) Nos.349 and 350 of 2016 arriving at the notional income of the husband/father and fixing the quantum of maintenance. 18. As the revision petitioner was deemed to be an able bodied person, he is bound to maintain his wife and children by even doing physical labour. An able bodied person in the year 2015, by any stretch of imagination would have earned at least Rs.1000/- per day for a period of twenty five days in a month even by doing daily labour. Thus, I fix the notional income of the revision petitioner @ Rs.25,000/- per month. Therefore, I am of the definite view that the impugned common order directing the revision petitioner to pay monthly maintenance allowance to his wife and children @ Rs.9,500/- is only reasonable and justifiable. I do not find any illegality, impropriety or 13 R.P (FC) Nos.349 and 350 of 2016 irregularity in the impugned common order warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. 19. The learned counsel appearing for the revision petitioner submitted that this Court by its interim order had stayed the execution of the impugned common order by directing the revision petitioner to pay 50% of the enhanced maintenance allowance, which the revision petitioner has complied with. Hence, the revision petitioner may be granted a breathing time to pay the balance amount due as per the impugned common order. I find the submission to be reasonable and justifiable because these revision petitions are pending consideration before this Court from 2016 and the interim order was in force. The learned counsel 14 R.P (FC) Nos.349 and 350 of 2016 also submitted that now the older child has attained majority. Hence, the revision petitioner’s right to seek for cancellation of the order may be left open. 20. In the result, (i) The revision petition is dismissed, confirming the impugned common order. (ii) The revision petitioner is permitted to pay the arrears of maintenance due, as per the impugned order, in four equated and successive monthly instalments commencing from 11.2.2024 onwards. (iii) Needless to mention, if the revision petitioner has deposited any amount pursuant to the interim orders of this Court, he would only be liable to pay the balance amount due, while calculating the arrears of interim maintenance . 15 R.P (FC) Nos.349 and 350 of 2016 (iv) If the revision petitioner fails to comply with the said order, the respondents would be at liberty to execute the impugned common order. (v) The revision petitioner’s right to work out his remedies under Sec.127 of the Code seeking alteration of the maintenance allowance, is left open. **==> picture [31 x 15] intentionally omitted <==** sks/11.12.2023 **C.S.DIAS, JUDGE**