RPFC No. 50 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945** ## **RPFC NO. 50 OF 2022** ## **AGAINST THE ORDER/JUDGMENT MC 80/2018 OF FAMILY COURT, MAVELIKARA REVISION PETITIONER/S:** SHYAM SASIDHARAN AGED 32 YEARS S/O.SASIDHARAN, PUTHENTHARAYIL HOUSE, KARUVATTA P.O., ALAPPUZHA DISTRICT, PIN- 690 517. BY ADVS. T.KABIL CHANDRAN R.ANJALI ## **RESPONDENT/S:** 1 RESHMA RAJ AGED 28 YEARS W/O.SHYAM SASIDHARAN, RAJ BHAVAN, THEKKEKARA VILLAGE, PONAKAM MURI, MAVELIKARA - 690 107. 2 KASINATH @ RYAN AGED 3 YEARS S/O.SHYAM SASIDHARAN, RAJ BHAVAN, THEKKEKARA VILLAGE, PONAKAM MURI, MAVELIKARA - 690 107 REP. BY HIS MOTHER RESHMA RAJ, (1ST RESPONDENT). BY ADVS. AMRIN FATHIMA BINDU SUKUMARAN(K/671/1996) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 50 OF 2022 2 ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C.No.80/2018 of the Family Court, Mavelikkara, ordering the revision petitioner to pay the respondents – his wife and son – monthly maintenance allowance @ Rs.5,000/- and Rs.2,500/-, respectively from the date of application (05.06.2018). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. 2. The respondents had filed an application under Section 125(1) of the Code of Criminal Procedure (in short, Code) against the revision petitioner, seeking monthly maintenance allowance @ Rs.10,000/- each. It was their case that, the 1[st] respondent is the wife of the revision petitioner and the 2[nd] respondent was born in their wedlock on 08.04.2017. The 1[st] respondent was undergoing some treatment for psychological problems. She and the 2[nd] respondent had no means for their livelihood. The revision petitioner has deserted the respondent and had willfully refused to maintain them. The revision petitioner is doing RPFC NO. 50 OF 2022 3 business and is earning Rs.1,00,000/- per month. He is also earning Rs.50,000/- per month from his landed property. The respondents require Rs.10,000/- each for their monthly maintenance, to live the same status and standard of living of the revision petitioner. Hence, the application. 3. The revision petitioner had filed a counter statement refuting the allegations in the application. He contended that the application was not maintainable at the instance of the 1[st] respondent, since she was not competent to represent herself because of her mental illness. The revision petitioner has filed O.P.(G&W)No.329/2018 for the custody of the 2[nd] respondent. The 1[st] respondent is living separately from the revision petitioner without any justifiable cause and has forcefully kept away the 2[nd] respondent from him. The 1[st] respondent had suppressed her mental illness at the time of their marriage. Hence, the revision petitioner's consent for the marriage was obtained by fraud. The 1[st] respondent is not entitled to maintenance. Hence, the application may be dismissed. 4. The 1[st] respondent was examined as PW1 and RPFC NO. 50 OF 2022 4 Exts.P1 and P2 were marked in evidence through her. The revision petitioner was examined as RW1 and Exts.D1 to D6 were marked on his side. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order partly allowed the application as observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri. Kabil Chandran T., the learned Counsel appearing for the revision petitioner and Smt.Amrin Fathima, the learned Counsel appearing for the respondents. 8. Is there any illegality, impropriety or irregularity in the impugned order ? 9. The revision petitioner admits his marriage with the - 1[st] respondent and also the paternity of the 2[nd] respondent. 10. The respondents' case in the application was that, although the revision petitioner was earning Rs.1,50,000/per month from his business and his landed properties, he RPFC NO. 50 OF 2022 5 has willfully refused to maintain the respondents. 11. The revision petitioner's defence was that, the 1[st] respondent is living separately from him without any sufficient cause. Moreover, she is suffering from serious mental illness and his consent for the marriage was obtained by fraud. The 1[st] respondent was also deliberately keeping away the 2[nd] respondent from the revision petitioner. Therefore, the 1[st] respondent is not entitled to maintenance. 12. When the revision petition came up for consideration on 09.11.2023, this Court, following the directions of the Honourable Supreme Court in **Rajnesh vs. Neha** (supra) and reiterated in **Aditi Alias Miti vs. Jitesh Sharma** (Crl.A.No.3449/2023), directed the revision petitioner and the respondents to file their affidavits of disclosure of their assets and liabilities. 13. Pursuant to the above order, the revision petitioner has filed an affidavit disclosing his assets and liabilities, wherein, he has admitted that he is a lorry driver by RPFC NO. 50 OF 2022 6 profession and is earning a monthly income of Rs.15,000/-. He is also getting income of Rs.7,000/- per month, from the ration shop owned by his mother. He also has one acre of agricultural land jointly owned with parents. His father has 14 cents of property and a house. 14. On the contrary, the 1[st] respondent has filed an affidavit through her father and power of attorney holder, wherein, she has stated that she is presently working as a Security Guard in Spark Security Services, U.A.E. and is drawing a monthly salary of 1,200 UAE Dirhams and a monthly allowance of 750 UAE Dirhams. She has also produced her employment offer dated 13.09.2023, to prove her income. 15. 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. 16. In **Captain Ramesh Chander Kaushal v. Veena** RPFC NO. 50 OF 2022 7 **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. 17. 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. 18. It is well settled in a plethora of judgments that the Courts are permitted to do some guesswork in arriving RPFC NO. 50 OF 2022 8 at the notional income of the husband/father and fixing the quantum of maintenance. 19. From the materials on record, it is evident that even though the revision petitioner had contended that the 1[st] respondent had perpetrated fraud on him in obtaining his consent to the marriage, he has not filed any petition to declare his marriage with the 1[st] respondent a nullity or a decree for divorce. Thus, even as on today, the 1[st] respondent is the legally wedded wife of the revision petitioner. The revision petitioner has also not produced any material to substantiate his income. 20. The revision petition was aged 30 years at the time of application. There is nothing on record to prove that he is suffering from any disability or body ailments. Thus, the revision petitioner is deemed to be an able bodied person. An able bodied person, by any stretch of imagination, in the year 2018, would have earned Rs.1,000/- per day for atleast 20 days in a month. Thus, the Family Court has rightly fixed the notional income of the revision petitioner RPFC NO. 50 OF 2022 9 at Rs.20,000/- per month. Therefore, the direction in the impugned order, holding that the respondents are entitled to monthly maintenance allowance @ Rs.5,000/- and Rs.2,500/-, is reasonable and justifiable. 21. The learned Counsel for the revision petitioner submitted that, now that the 1[st] respondent has admitted that she is employed abroad, this Court may set aside the order of maintenance passed against her. 22. On an overall consideration of the pleadings and materials on record, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition is devoid of merit and is to be dismissed. any only Nonetheless it is made clear that, it would be upto the revision petitioner to work out his remedies, in accordance with law, to seek for modification/cancellation of the order as against the 1[st] respondent. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has RPFC NO. 50 OF 2022 **==> picture [13 x 9] intentionally omitted <==** deposited any amount, pursuant to the interim orders passed by this Court, he would be entitled to adjust the deposited amount, while paying the balance amount payable to the respondents as per the impugned order. The rights of the parties to seek for modification/cancellation of the impugned order is left open. Sd/- **C.S.DIAS, JUDGE** rkc/19.12.23