R.P.(F.C.) No. 264 of 2019

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 6[TH] DAY OF NOVEMBER 2023 / 15TH KARTHIKA, 1945 RPFC NO. 264 OF 2019 ``` ``` AGAINST THE ORDER IN MC 54/2017 OF FAMILY COURT, KASARAGOD ``` ## **`REVISION PETITIONER/RESPONDENT:`** ``` RAFEEK.E.K AGED 35 YEARS S/O. ABOOBACKER A.R, N.C.M. HOUSE, THURUTHI P.O, CHERUVATHUR VILLAGE, KASARAGOD DIST. PIN-671 331 ``` ``` BY ADVS. M.MUHAMMED SHAFI T.RASINI ``` ## **`RESPONDENT/PETITIONER:`** ``` AHAMMED RAZA.P.P (MINOR) S/O. FATHIMATH SUHAIRA,AGED 6 YEARS BAITHUL SHAHEER, KOTTAPURAM P.O, NILESHWAR VILLAGE, HOSDURG TALUK, KASARAGOD, REPRESENTED BY HIS MOTHER FATHIMATH SUHARA. ``` ``` BY ADVS. SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU ``` ## **`THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION`** ``` ON 06.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`R.P(F.C.) NO. 264 OF 2019 2`** **Dated this the 6[th] day of November, 2023** ## **ORDER** The revision petition is filed challenging the order passed in M.C. No.54/2017 of the Family Court, Kasaragod, directing the revision petitioner to pay his son – respondent- monthly maintenance allowance @ Rs.6000/- from the date of petition. The revision petitioner was the respondent and the respondent was the petitioner in the application. ## **Brief facts** 2. The respondent had filed the application under Section 125 of the Code of Criminal Procedure (‘Code’, for short), claiming monthly maintenance allowance from the revision petitioner. It was his case that, the revision petitioner was married to his mother on 14.4.2012 and the respondent was born in the wedlock. The respondent is a minor and he does not have any source of income. In a mediation talk that was held on 14.12.2015, the revision ## **`R.P(F.C.) NO. 264 OF 2019 3`** petitioner agreed to maintain the respondent and also meet to all his educational expenses. However, the revision petitioner resiled from his undertaking. The revision petitioner is doing grocery business and is running super markets. He has movable and immovable properties, and motor vehicles. He earns a monthly income of Rs.1/- lakh, but has refused to maintain the respondent. Hence, the application. 3. The revision petitioner resisted the application by filing a counter statement. He contended that his marriage with the respondent’s mother has been dissolved. The respondent’s mother has remarried. Even though the revision petitioner sought for the custody of the respondent, the same was turned down by respondent’s mother. The revision petitioner is working as a salesman in Malaysia and is only earning a monthly income of Rs.20,000/-. He has remarried and has a child in the present marriage. He has to maintain his family and his aged parents. He has lost his job and is in search ## **`R.P(F.C.) NO. 264 OF 2019 4`** of a new employment. He is paying maintenance to the respondent, which fact is suppressed in the application. Hence, the application may be dismissed. 4. The respondent’s mother was examined as PW1 and Exts.P1 to P3 were marked on his side. The revision petitioner was examined as RW1 and Exts.D1 to D12 were marked in evidence. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application, by directing the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.6000/-. 6. It is assailing the said order, the revision petition is filed. 7. Heard; Sri.Muhammed Shafi M., the learned counsel appearing for the revision petitioner and Sri. Suresh Kumar, the learned counsel appearing for the respondent. 8. Is there any illegality, irregularity or impropriety ## **`R.P(F.C.) NO. 264 OF 2019 5`** in the impugned order? 9. The revision petitioner admits that the respondent is his son born in the wedlock with his former wife. 10. The respondent's case is that, although the revision petitioner is living in an affluent background and earning a monthly income of Rs.1/- lakh, he has willfully refused to maintain the respondent. 11. The revision petitioner's case is that, he does not own any business, but he is working as a salesman in Malaysia and is earning only Rs.20,000/- per mensem. He has remarried and has a child in the wedlock. He has also aged parents, who were suffering from various ailments. Therefore, the revision petitioner is finding it difficult to maintain his present family. Nonetheless, he is paying maintenance to the respondent. 12. The respondent’s mother examined herself as PW1 and marked Exts.P1 to P3 documents. Ext.P1 shows that the revision petitioner has a motor vehicle in his name. Exts.P2 and P2(a) are the copies of fee receipts ``` R.P(F.C.) NO. 264 OF 2019 6 ``` evidencing the payment of school fees for the respondent. Ext.P3 is the agreement that was executed between the revision petitioner and the respondent’s mother, whereby the revision petitioner agreed to maintain the respondent, including to pay his educational expenses. 13. On the contrary, the revision petitioner was examined as RW1 and he marked Exts.D1 to D12 documents. D3 to D7 are the documents pertaining to the treatment records of his parents. D1 and D2 are the money order acknowledgment receipts showing that the revision petitioner has sent money orders to the respondent. Ext.D8 is the certificate which shows that the revision petitioner has sold his motor vehicle. 14. Section 125 of the Code of Criminal Procedure,1973 (‘Code’ for short), was conceived to ameliorate the agony, anguish and financial sufferings of women and children, who are constrained to leave the matrimonial home for the reasons provided in Chapter IX of the Code. ## **`R.P(F.C.) NO. 264 OF 2019 7`** 15. It is trite that an able bodied person is statutorily bound to maintain his wife and child, [read **Anju Garg & Another v. Deepak Kumar Garg** [2022 LiveLaw (SC) 805]. 16. After bestowing my anxious consideration to the materials placed on record, and taking into account the the fact that the revision petitioner does not dispute the paternity of the child, that he is presently in Malaysia, that he has remarried and has a child in the present marriage and that he has landed properties, I am of the firm view that the order passed by the Family Court is reasonable and justifiable because the respondent is entitled to live in the same status and standard of living as that of the revision petitioner, who is a NRI. I do not find any error, illegality or impropriety in the impugned order warranting interference by this Court by exercising its revisional powers under Section 19(4) of the Family Courts Act. Resultantly, the revision petition is dismissed. ``` R.P(F.C.) NO. 264 OF 2019 8 ``` However, taking into account the fact that this Court had passed a conditional interim order dated 1.8.2019, directing the revision petitioner to provisionally pay the respondent maintenance @ Rs.4000/- per month, I am of the view that the revision petitioner has to be granted a breathing time to pay the arrears of maintenance due as per the impugned order. Therefore, the revision petitioner is permitted to pay the entire arrears of maintenance as per the impugned order in two equated monthly instalments payable on or before 1.1.2024 and 1.2.2024. If the revision petitioner fails to deposit the arrears of maintenance as ordered above, the Family Court shall proceed with the recovery proceedings as contemplated under the Code. ## **Sd/-** ## **C.S.DIAS, JUDGE** rmm6/11/2023