R.P.F.C. No. 10 of 2004 (MC.418/2002 of the Family Court, Manjeri)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 RPFC.No. 10 of 2004() --------------------MC.418/2002 OF THE FAMILY COURT, MANJERI .................... REVISION PETITIONER/1ST PETITIONER --------------------------------------------------- R.SUNITHA D/O. V.P. RAVEENDRANATHAN, AGED 29 YEARS, OORANGATHU KALATHIL VEEDU, MARAYAMANGALAM AMSOM, MARAYAMANGALAM P.O., OTTAPPALAM TALUK. BY ADV. SRI.JOSE THETTAYIL SMT.RESHMI JACOB RESPONDENTS: RESPONDENT ----------------------- GOPALAKR5ISHNAN @ UNNI, AGED 34 YEARS, S/O.KUTTIKRISHNAN NAIR, PANAMTHODI VEEDU, ALIPARAMBU AMSOM, PARAL DESOM, PARAL P.O., PERINTHALMANNA TALUK. BY ADV. SRI.BABU S. NAIR FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - ## R.P.F.C.No. 10 of 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of August, 2008 ## **O R D E R** The petitioner is the claimant in a petition under Section 125 Cr.P.C., whose claim was turned down by the Family Court by the impugned order. 2. Marriage is admitted. Separate residence is also conceded. Birth of the second claimant in the wedlock is also accepted. The husband contended that the wife is residing separately without any valid justification. He contended that she was deserting him without any valid reasons. He offered to maintain her on condition that she lives with him. It was contended that the husband was employed in Bangalore as a Computer Programmer. Maintenance was claimed at the rate of Rs.1,000/- both for the wife and the child. 3. There was only oath against oath when the parties went to trial. The claimant wife examined herself as PW1, whereas the respondent/husband examined himself as RW1. Before the 2 R.P.F.C.No. 10 of 2004 Family Court a claim for divorce was filed by the husband on the ground that the wife was contumaciously guilty of deserting him during the matrimony. That claim for divorce was allowed as per order in O.P. 347 of 2002, which was also disposed of on the same day as the maintenance claim. 4. It is conceded before me that the decree for divorce has now become final without challenge. The claimant/wife has not challenged the decree for divorce. 5. The learned counsel for the petitioner submits that even if the entire case of the husband were accepted, the petitioner/claimant/wife must have been granted maintenance from the date of the order it having been conceded unambiguously that she had become a divorced wife on the date of the impugned order. Under Explanation (b) to Section 125 Cr.P.C. a divorced wife is also entitled to claim maintenance under Section 125 Cr.P.C. She does not have the obligation to live with the husband. The respondent having applied for and he having been granted divorce with effect from the date of the order, he cannot have any valid contention to resist the claim for R.P.F.C.No. 10 of 2004 3 maintenance of the first claimant/wife. In these circumstances it must have been held that the claimant/wife is entitled for maintenance at any rate from the date of the impugned order as she would fall within the sweep of Explanation (b) to the expression 'wife' under Section 125 Cr.P.C. 6. I find merit in that contention. On and with effect from the date of divorce the claim of the first claimant/wife for maintenance in her capacity as divorced wife cannot be turned down at all. She is therefore certainly entitled for maintenance. There is nothing to show that she is not unable to maintain herself. During the pendency of the petition she had an obligation to live with the husband in the absence of special reasons. The claimant/wife has accepted the decree of divorce and has not challenged the order dissolving the marriage on the ground of desertion. In these circumstances, notwithstanding the contention of the learned counsel for the petitioner that the claimant/wife is entitled for maintenance during the pendency of the proceedings, I am of the opinion that in the wake of the unchallenged order granting divorce on the ground of desertion, the claimant/wife R.P.F.C.No. 10 of 2004 4 cannot have a valid claim for maintenance during the pendency of the petition. 7. However, I agree that the wife is entitled for maintenance from the date of the order. The wife, who is guilty of contumacious conduct in the matrimony and whose husband has secured divorce on the ground of such contumacious conduct, will still be entitled for maintenance as a divorced wife under Section 125 Cr.P.C. This position of law is settled beyond controversy in the decisions in **Rohtash Singh v. Smt. Ramendri & ors.** (JT 2000 (2) SC 553), **Moni v. Sujatha** (1986 KLT 257) and **Valsarajan v. Saraswathy** (2003 (2) KLT 548). It is not necessary to advert to other decisions on the point. I am satisfied that in any view of the matter the claimant/wife is entitled for maintenance under Explanation (b) to Section 125 Cr.P.C. from the date of the impugned order. 8. All that remains to be considered is the quantum of maintenance which should be awarded. The claim petition was filed as early as in 2002. The claim was for an amount of Rs.1,000/- p.m. She contended that her husband was employed at Bangalore as a Computer R.P.F.C.No. 10 of 2004 5 Programmer. The husband/respondent admitted that he was residing at Bangalore and that he has some knowledge in computers. But he took the stand that he is not employed as a Computer Programmer, but was earning Rs.40 to Rs.60/- per day as an autorikshaw driver. I take note of the broad circumstances. It is idle to assume that the respondent having admittedly some knowledge of computer, went in search of employment and started work there as an autorikshaw driver. In any view of the matter, I am satisfied that the claimant/wife can be awarded maintenance at the rate of Rs.1,000/- as claimed by her from the date of the impugned order i.e. 3.6.2003. 9. The learned counsel for the respondent prays that the matter may be sent back to the Family Court to enable the respondent to adduce evidence on the quantum of maintenance payable. I find absolutely no reason to justify such a request for remand. Remand cannot be a matter of indulgence on the part of the superior court. It is incumbent that a person claiming a further opportunity must show to the satisfaction of the court that there are circumstances which deprive such party of an opportunity to adduce appropriate evidence at the 6 R.P.F.C.No. 10 of 2004 appropriate stage. The respondent was obliged to adduce evidence about his income before the court below. He could not have possibly resisted the claim for maintenance of his child on any other ground. There is no explanation as to why necessary and relevant evidence on the question of quantum of maintenance was not adduced before the court below. I am, in these circumstances, of the opinion that there is no merit in the prayer for the luxury of a further opportunity to adduce evidence on the question of income of the respondent. The said request for remand is hence turned down. 10. In the result: a) This R.P.F.C. is allowed. b) The impugned order is modified. The rejection of the claim for maintenance of the claimant/wife is set aside. c) The respondent is directed to pay maintenance at the rate of Rs.1,000/- p.m. from the date of the impugned order i.e. 3.6.2003. tm **(R. BASANT)** Judge R.P.F.C.No. 10 of 2004 7