High Court of KeralaSingle Judge2023-10-26Dismissed

RPFC No. 415 of 2014, Velayudhan Nadarajan v. Jessy V. Rajan and others

Case / Petition Number:RPFC No. 415 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2023-10-26
Court Decision / Holding: Resultantly, the revision petition is dismissed, without prejudice to the right of the revision petitioner to seek modification of the impugned order under Section 127 of the Code. If such a petition is filed, the Family Court shall consider and dispose of the same in accordance with law.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Sri Velayudhan Nadarajan

Respondents

Smt. Jessy V. Rajan
Smt. Meena V. Rajan
Meera V. Rajan
Mahima V. Rajan

Legal Representation & Advocates

Counsels for Petitioners

• Sri Anil S. Raj
• Smt. Anila Peter
• Smt. C. Prabitha
• Smt. K. N. Rajani
• Sri J. Vivek George

Counsels for Respondents

• Smt. R. Bindu
• Sri Harish Gopinath
• Sri Johnson Jose Panjikkaran
• Sri R. S. Kalkura
• Sri M. S. Kaleesh

Case Synopsis & Summary

This is a revision petition under Section 125 CrPC filed in the Kerala High Court by Velayudhan Nadarajan (revision petitioner) challenging a Family Court, Thiruvananthapuram, order directing him to pay maintenance to his wife and three daughters. The Family Court, after considering pleadings and evidence, held that the petitioner, a former Assistant Executive Engineer in the PWD, had a substantial monthly income (the Court accepting Rs. 30,000 as his salary despite his claim of only Rs. 4,355 with no supporting documents) and that the respondents—his wife and four daughters—were dependent on such maintenance. It was found that the marriage to the 1st respondent had been established by long cohabitation, a sufficient basis for assuming marriage in a summary proceeding under Section 125 CrPC, and the petitioner’s conduct—living with other women and misappropriation of property—was seen as matrimonial cruelty justifying maintenance. The Family Court directed maintenance at Rs. 3,500 per month for each of the four respondents from 02.07.2008 until the first respondent remains his wife and until the daughters complete their graduation. The petitioner sought remand, arguing lack of opportunity to contest and the respondents’ alleged majority; the respondents defended the order as just and long overdue. The High Court, noting no illegality in the order and the extended period since the order, dismissed the revision petition, while leaving open the possibility of modification under Section 127 CrPC upon a future application. The decision cites Supreme Court precedents emphasizing the protective purpose of maintenance and the duty of an able-bodied husband to support his wife and children.

Provisions of Law Cited

Section 125 of the Code of Criminal ProcedureSection 127 of the Code of Criminal ProcedureSection 103 of the Indian Evidence Act

Legal Doctrines & Maxims

Long cohabitation is sufficient to prove marriage in a summary proceeding under Section 125 CrPC
Section 125 CrPC is intended to provide maintenance to wife and children; sustenance should preserve the status of spouses rather than merely sustain life
An able-bodied person is bound to maintain his wife and children

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner submits that he did not get a fair opportunity to contest the petition before the Family Court, and he was not allowed to mount the witness box to lead evidence. He points to the long lapse since the order and to the fact that respondents 2 to 4 have attained majority and are financially independent, arguing that his liability to maintain them may have ceased. He seeks setting aside the impugned order and remand to the Family Court to afford him a full opportunity to contest on merits, including evidence of his income and any challenge to the marriage as claimed. He also emphasizes his health and alleged disability and contends that the maintenance fixed is at odds with his income and circumstances.

Contentions of Respondents

The respondents contend that the revision petition is meritless and has been repeatedly delayed; despite multiple opportunities the petitioner did not mount the box or lead evidence, and the order was passed more than a decade ago. They argue that remanding would be a travesty of justice, given the delay. The petitioner admitted paternity of respondents 2 to 4 and, despite disputing the marriage, did not controvert essential facts on evidence. The Family Court’s fixation of Rs. 3,500 per month for each respondent is reasonable, and the petitioner’s income was inferred under Section 103 of the Evidence Act in the absence of production of documents. The respondents urge that the Court should not disturb the order and should allow modification only under Section 127 CrPC if warranted by a future application.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Bhuwan Mohan Singh v. Meena & Others	(2015) 6 SCC 353	Positive	SC observed that Section 125 CrPC aims to ameliorate the anguish of wife and children and that sustenance includes more than bare subsistence; supports maintenance liability.
Anju Garg & another v. Deepak Kumar Garg	[2022] LiveLaw (SC) 805	Positive	SC held that an able-bodied person is bound to maintain wife and children; reinforces maintenance obligation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945** **RPFC NO. 415 OF 2014** **AGAINST THE ORDER/JUDGMENT MC 119/2008 OF FAMILY** ## **COURT,THIRUVANANTHAPURAM** ## **REVISION PETITIONER/S:** SRI.VELAYUDHAN NADARAJAN, AGED 59 YEARS, S/O LATE SRI NADARAJAN PANICKER, FORMERLY RESIDING AT PADMA, NARUMVAMOODU P.O, THIRUVANANTHAPURAM AND NOW AT MEENA VIHAR, AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI, VILAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SMT.C.PRABITHA SMT.K.N.RAJANI SRI.J.VIVEK GEORGE ## **RESPONDENT/S:** 1 SMT.JESSY V.RAJAN AGED 48 YEARS D/O SMT. THANKAMMA THOMAS, RESIDING AT MEENA VIHAR AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI, VILAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU, NOW RESIDING AT GNA 116, GANDHI NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM 695014 2 MS. MEENA V RAJAN AGED 18 YEARS D/O SRI VELAYUDHAN NADARAJAN, RESIDING AT MEENA VIHAR AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI, VILAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU, NOW RESIDING AT GNA 116, GANDHI NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM 695014 3 MEERA V RAJAN MINOR AGED 17 YEARS D/O SRI VELAYUDHAN NADARAJAN, RESIDING AT MEENA VIHAR AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI, VILAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU, RPFC NO. 415 OF 2014 2 NOW RESIDING AT GNA 116, GANDHI NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM 695014 4 MAHIMA V. RAJAN AGED 14 YEARS D/O SRI VELAYUDHAN NADARAJAN, RESIDING AT MEENA VIHAR AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI, VILAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU, NOW RESIDING AT GNA 116, GANDHI NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM 695014 BY ADVS. SMT.R.BINDU SRI.HARISH GOPINATH SRI.JOHNSON JOSE PANJIKKARAN SRI.R.S.KALKURA SRI.M.S.KALESH THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 415 OF 2014 3 (Dated this the 26[th] day of October, 2023) ## **ORDER** The revision petition is filed challenging the order in M.C.No.119/2008 of the Family Court, Thiruvananthapuram directing the revision petitioner to pay maintenance at the rate of Rs.3,500/- per month each to the respondents – his wife and three daughters. The revision petitioner was the respondent and the respondents were the petitioners in the above petition before the Family Court. 2. The respondents filed the above petition under Section 125 of the Code of Criminal Procedure (in short, 'Code'), inter-alia, stating that the 1[st] respondent is the wife of the revision petitioner and the respondents 2 to 4 are the daughters born in the wedlock. The revision petitioner is employed as an Assistant Executive Engineer in the PWD and drawing a monthly salary of Rs.30,000/-. The revision petitioner was living with other women and refused to maintain RPFC NO. 415 OF 2014 4 the respondents. He threatened the respondents, compelling them to leave the matrimonial home. The revision petitioner misappropriated the property of the 1[st] respondent. The respondents have no means for their sustenance. Despite having sufficient means, the revision petitioner refused to maintain the respondents. Hence, the petition. 3. The revision petitioner filed a written objection , inter-alia, denying his marriage with the 1[st] respondent. His principal defence is that he is physically handicapped and is suffering from chronic active hepatitis and other ailments. He only has a net monthly income of Rs.4,355/-. He has filed OP(G&W) No.693/2008, for the permanent custody of his daughters. Hence, the petition may be dismissed. 4. The 1[st] respondent got herself examined as PW1 and marked Exts.P1 to P9 in evidence. The revision petitioner did not let in any evidence. RPFC NO. 415 OF 2014 5 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the petition by directing the revision petitioner to pay monthly maintenance to the respondents at Rs.3,500/- each from 02.07.2008 till the 1[st] respondent continues to be his wife and till the respondents 2 to 4 complete their studies up to the graduation level. 6. Aggrieved by the order, the revision petition is filed. 7. Although the revision petition was admitted on 02.12.2014, this Court has not stayed the operation of the order. 8. Heard; Smt.Rajani K.M., the learned Counsel appearing for the revision petitioner and Sri.R.S.Kalkura, the learned Counsel appearing for the respondents. 9. The learned Counsel appearing for the revision petitioner submitted that the revision petitioner did not RPFC NO. 415 OF 2014 6 get sufficient opportunity to contest the petition before the Family Court, therefore, he could not let in evidence at the trial stage. Moreover, the respondents 2 to 4 have attained majority and are now well placed in life. Hence, the revision petitioner's liability to maintain them has come to an end. Hence, this Court may set aside the impugned order and remand the matter back to the court below to afford the revision petitioner an opportunity to contest the case on its merits. 10. The learned Counsel appearing for the respondents submitted that despite numerous opportunity given to the revision petitioner, he deliberately did not mount the box and let in any evidence. Moreover, the maintenance order was passed more than a decade back. At this point of time, it would be a travesty of justice to remit the matter back to the Family Court for facilitating the revision petitioner an opportunity to contest the case on merits. The revision petition is meritless and may be dismissed. RPFC NO. 415 OF 2014 7 11. Is there and any illegality, irregularity impropriety in the impugned order ? 12. The respondents filed the petition for an order of maintenance allowance from the revision petitioner on the ground that he is the husband of the 1[st] respondent and the father of the respondents 2 to 4. 13. Even though the revision petitioner disputed his marriage with the 1[st] respondent, he has admitted the paternity of the respondents 2 to 4 and that they are born in his relationship with the 1[st] respondent. Moreover, he has filed OP(G&W) No.693/2008 before the same Court, for the permanent custody of the children. In his written objection to the petition he has conceded to maintain the respondents 2 to 4 @ Rs.1,000/- each per month. 14. Indisputably, though the revision petitioner filed his written objection in the petition, for reasons best known to him, he refused to mount the box. RPFC NO. 415 OF 2014 8 Therefore, his defence is not corroborated by any material. On the contrary, the 1[st] respondent examined herself as PW1 and proved Exts.P1 to P9. 15. Section 125 of the Code is envisaged for the purpose of a man to maintain his wife, children and parents. Other than for the bald assertion in the written objection, that there was no valid marriage between the revision petitioner and the 1[st] respondent, there is cogent material to prove the allegation. Yet, in the same breath the revision petitioner has conceded that he is the father of the respondents 2 to 4, who are born in his relationship with the 1[st] respondent. Therefore, I am of the definite view that the contention of the revision petitioner that there was no marriage between him and the 1[st] respondent is imputed only for the purpose of wriggling out of his statutory liability to maintain his wife. The Family Court has rightly concluded that the 1[st] respondent is the wife of the revision petitioner. It is nigh well-settled that the long co-habitation is sufficient RPFC NO. 415 OF 2014 9 to prove marriage in a summary proceeding under Section 125 of the Code. 16. Admittedly, the revision petitioner was employed as an Assistant Executive Engineer in the PWD. He contended that he was getting only a net salary of Rs.4,355/- per month. But, he did not produce any document to prove his income. 17. Section 103 of the Indian Evidence Act casts the burden on the person who wishes the Court to believe the existence of a particular fact. As the revision petitioner failed to produce any material to prove his income adverse inference is to be drawn against him and the contention of the respondents that he is earning an amount of Rs.30,000/- per month is to be accepted. 18. The 1[st] respondent's case is that the revision petitioner treated her with matrimonial cruelty which compelled her to leave with her children to her parental RPFC NO. 415 OF 2014 10 home. The materials on record show that the three daughters were pursuing their studies. It was in the above background that the Family Court deemed it fit and proper to order the revision petitioner to pay maintenance at the rate of Rs.3,500/- each to the respondents. 19. In **Bhuwan Mohan Singh vs. Meena & others** [(2015) 6 SCC 353], the Honourable Supreme Court has observed that Section 125 of the Code was conceived to ameliorate the anguish, agony and financial sufferings of wife and children who force to leave the matrimonial home. The concept of sustenance does not mean to lead the life of an animal, feel like an unperson to be thrown away from grace but to lead a life in the status and position as that of the husband/wife. ## 20. Recently in **Anju Garg & another vs. Deepak** **Kumar Garg** [2022 LiveLaw (SC) (805)] the RPFC NO. 415 OF 2014 **==> picture [12 x 9] intentionally omitted <==** Honourable Supreme Court has held that an able bodied person is bound to maintain his wife and children. 21. In the case on hand, undisputedly, the revision petitioner is an Engineer by profession and was employed in the PWD as an Assistant Executive Engineer. It is taking into account the revision petitioner's status and background the Family Court fixed the monthly maintenance allowance of the respondents @ Rs.3,500/-. I do not find any error, illegality or impropriety in the impugned order passed by the Family Court warranting interference by this Court by exercising its revisional jurisdiction. It would be a mockery of justice, at this point of time, to remit the matter back to the Family Court to afford the revision petition an opportunity to contest the case. The revision petitioner did not even file an application to set aside the ex-parte order instead rushed to this Court. If at all he has a case that the respondents 2 to 4 have RPFC NO. 415 OF 2014 12 attained majority and are well placed in life now, it would be up to him to move the Family Court under Section 127 (1) of the Code and seek for alteration/cancellation of the impugned order and not aspire for any interference by this court on his mere asking without there being any illegality in the order. The revision petition sans substance or merits. Resultantly, the revision petition is dismissed, without prejudice to the right of the revision petitioner to seek for modification of the impugned order under Section 127 of the Code. If such a petition is filed, the Family court shall consider and dispose of the same in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc/26.10.23