RPFC No. 359 of 2019 (Revision Petition) against Order in MC 242/2014, Family Court, Irinjalakuda

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** ## **RPFC.No.359 OF 2019** **AGAINST THE ORDER/JUDGMENT IN MC 242/2014 DATED 24-062019 OF FAMILY COURT, IRINJALAKUDA** ## **REVISION PETITIONER/RESPONDENT:** **PRAKASAN, AGED 62 YEARS S/O. KUNNATHUPARAMBIL KUNJAIPPUNNI,EDATHIRINJI VILLAGE AND DESOM, MUKUNDAPURAM TALUK - 680 122** **BY ADV. SRI.P.K.SAJEEV** ## **RESPONDENT/PETITIONER:** **BABY, AGED 57 YEARS D/O. VALLUPARAMBIL VELANDY, EDATHIRINJI VILLAGE AND DESOM, MUKUNDAPURAM TALUK - 680 122, W/O. PRAKASAN, KUNNATHUPARAMBIL HOUSE** **R1 BY ADV. SRI.N.L.BITTO** **THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 28.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.(FC) No. 359 of 2019 2 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.P.(FC) No. 359 of 2019** ## **-----------------------------------------------** ## **Dated this the 28[th] day of January, 2020** ## **O R D E R** This is a revision petition filed challenging the order dated 24.06.2019 in M.C. No.242 of 2014 on the files of the Family Court, Irinjalakuda. 2. The proceedings aforesaid is one instituted by the respondent against the petitioner under Section 125 of the Code of Criminal Procedure for maintenance. The case set out by the respondent in the proceedings was that the petitioner had married her on 22.10.1975; that they were residing together till 10.6.1983, on which day she had to leave the company of the petitioner on account of his cruelties; that two children were born in the wedlock, a girl and a boy; that she has given away her daughter in marriage by spending money R.P.(FC) No. 359 of 2019 3 from her pocket; that her daughter lost her husband and the respondent has therefore to look after the daughter; that the son of the respondent is working abroad and living separately; that the respondent is suffering from various ailments; that she and her daughter have no means for sustenance; that the petitioner is a toddy tapper earning about Rs.10,000/- per month; that the petitioner has other income also to the tune of Rs.10,000/- and that the petitioner is therefore liable to maintain the respondent. Rs.10,000/- was the monthly maintenance claimed in the proceedings. 3. The petitioner contested the proceedings contending mainly that there was no marriage between the petitioner and the respondent; that he is not now working as toddy tapper as alleged; that he is suffering from various ailments including renal disorders and that he is therefore not liable to maintain the respondent. 4. The respondent gave evidence as PW1. She has also examined two witnesses on her side as PWs.2 and 3 R.P.(FC) No. 359 of 2019 4 and produced 34 documents which were marked as Exts.A1 to A34. The petitioner gave evidence as RW1 and produced five documents which were marked as Exts.B1 to B5 series. In addition, a document was called for and marked in the proceedings as Ext.X1. 5. The court below, on an elaborate consideration of the facts and circumstances of the case took the view that in so far as it is admitted that the petitioner and the respondent were residing together for about ten years and two children were born in that relationship, it is unnecessary to consider the question as to whether there was a valid marriage between the petitioner and the respondent for the purpose of the proceedings. The court below found that the petitioner could not establish that he is incapacitated from working and therefore, he cannot be heard to contend that he does not have the means to maintain the respondent. It was also found by the court below that documents produced by the petitioner do not establish that he is suffering from any serious ailments. On the R.P.(FC) No. 359 of 2019 5 aforesaid view, the court below directed the petitioner to pay a sum of Rs.2,500/- per month to the respondent towards maintenance. The petitioner is aggrieved by the said order. 6. Heard the learned counsel for the petitioner as also the learned counsel for the respondent. 7. The learned counsel for the petitioner submitted that this is an unusual case where the proceedings for maintenance was instituted almost 40 years after the respondent left the company of the petitioner. It was pointed out that the respondent has stated in the application itself that she is living separately from 10.06.1983 onwards and the proceedings was instituted on 10.11.2014. Placing reliance on the particulars of the wife of the petitioner which are available on record, the learned counsel for the petitioner contended strenuously that the petitioner has never married the respondent and that the respondent is, therefore, not entitled to maintenance. It was also argued by the learned counsel for the petitioner that the respondent has admitted that the claim R.P.(FC) No. 359 of 2019 6 was raised by her for the purpose of maintaining her daughter and such a claim is not maintainable. 8. I have considered the rival submissions made by the parties. 9. It is long settled that a broad and expansive interpretation should be given to the term 'wife' for the purpose of the proceedings under Section 125 of the Code of Criminal Procedure to include even live-in relationships for a reasonably long period of time, and strict proof of marriage is not a precondition for maintenance under the said statutory provision which is a beneficial legislation [See **Chanmuniya v. Virendra Kumar Singh Kushwaha,** (2011) 1 SCC 141]. In so far as the petitioner has admitted the cohabitation with the respondent for a period of almost ten years and the paternity of the two children born to them, I am in agreement with the view taken by the court below that the question as to whether there was a valid marriage between the parties is irrelevant in the context. The oral evidence let in by the petitioner and the documents R.P.(FC) No. 359 of 2019 7 produced by him do not indicate that the petitioner is suffering from any serious ailment which incapacitates him from doing any work. The said documents would only show that he is suffering from some ailments which are common to persons of that age group. In other words, the contentions raised by the petitioner that he is suffering from serious ailments and that he has no means to pay maintenance directed to be paid are only to be rejected. Similarly, it is seen that the respondent has stated that the proceedings are instituted with a view to maintain her widowed daughter. When the respondent is burdened with the obligation to maintain her widowed daughter as well, a mere statement to that effect cannot be read in isolation to contend that the maintenance claim is not for the petitioner, but for her daughter. 10. True, the petitioner is aged 62 years and he may not be able to do the toddy tapping work now which he was doing earlier. At the same time, one has to consider the plight of the respondent as well. She is aged 57 years and R.P.(FC) No. 359 of 2019 8 stated to be burdened with the obligation to maintain her widowed daughter. Insofar as it is admitted that the son of the respondent is working abroad, and in the absence of any claim for maintenance by the respondent as against her son, I have a doubt in my mind as to whether the present claim is a genuine one, or one instituted to wreak vengeance, especially since the proceedings was instituted after 40 years. But materials on record are not sufficient to reinforce the same. In the circumstances, I have no option but to affirm the impugned order, especially since the direction therein is to pay only a sum of Rs.2500/- to the respondent towards monthly maintenance. The R.P.(FC) is, accordingly, dismissed. **Sd/P.B.SURESH KUMAR JUDGE** ds 18.01.2020