RPFC NO. 81 OF 2017

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 14[TH] DAY OF DECEMBER 2023 / 23RD AGRAHAYANA, 1945** **RPFC NO. 81 OF 2017** **AGAINST THE ORDER/JUDGMENT MC 93/2014 OF FAMILY** **COURT,THIRUVANANTHAPURAM** ## **REVISION PETITIONER/S:** MANIVANNAN AGED 46 YEARS S/O JAYACHANDRAN, AGED 46 YEARS, RESIDING AT 22 K.V.S, PAK COLONY, RAJALAXMI NAGAR, DINDIGUL, TAMILNADU. BY ADVS. SRI.K.B.HARSHAN SMT.SOUMINI JAMES ## **RESPONDENT/S:** 1 UDAYAKUMARY D/O B.PUSHPAVALLY, AGED 51 YEARS, RESIDING AT T.C.32/1019(3), SOWPARNIKA, ARA-158, NEAR ALL SAINTS COLLEGE, BEACH POST, THIRUVANANTHAPURAM. 2 APARNA KRISHNAN M.U. D/O MANIVANNAM, AGED 15 YEARS, (MINOR) RESIDING AT -DO-. BY ADVS. SMT.N.P.ASHA SRI.G.SUDHEER THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 81 OF 2017 2 ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C. No.93/2014 of the Family Court, Thiruvananthapuram, directing the revision petitioner to pay the respondents – his wife and daughter – monthly maintenance allowance @ Rs.4,000/- each from the date of application (26.03.2014). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure (in short, “Code”) against the revision petitioner seeking monthly maintenance allowance @ Rs.20,000/- each. It was their case that the revision petitioner was married to the 1[st] respondent on 01.12.1999 and the 2[nd] respondent was born in their wedlock. The revision petitioner treated the 1[st] respondent with matrimonial cruelty and has willfully refused to maintain them, despite earning a monthly income of Rs.1,00,000/-. Hence, the application. 3. The revision petitioner filed a written objection RPFC NO. 81 OF 2017 3 refuting the allegations in the application. He contended that the 1[st] respondent had filed a false complaint against him before the Police and an FIR was registered. The 1[st] respondent is living separately from him without any sufficient cause. He also denied the fact that he was earning Rs.1,00,000/- per month. He prayed that the application may be dismissed. 4. In the trial, the 1[st] respondent was examined as PW1 and Exts.P1 to P4 were marked through her in evidence. The revision petitioner was examined as CPW1 and Exts.R1 to R3 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 already observed above. It is assailing the said order; the revision petition is filed. 6. Heard; Smt.Soumini James, the learned Counsel appearing for the revision petitioner and Sri.G.Sudheer, the learned Counsel appearing for the respondents. 7. Is there any illegality, impropriety or irregularity in the impugned order ? RPFC NO. 81 OF 2017 4 8. The revision petitioner admits his marriage with the 1[st] respondent and also the paternity of the 2[nd] respondent. 9. The respondents' case in the application was that , the revision petitioner had willfully refused to maintain them despite earning Rs.1,00,000/- per month from his business. 10. The revision petitioner resisted the application and contended that the 1[st] respondent was living separately from him without sufficient cause. He also contended that he had undergone a surgery on his right leg and he was only earning Rs.6,000/- as monthly salary plus a daily wage of Rs.50/- as evidenced by Ext.R3 certificate. Therefore, the revision petitioner was not in a position to maintain the respondents @ Rs.20,000/- per month as sought for in the application. 11. Even though the revision petitioner contended that the 1[st] respondent was living separately from him without sufficient cause, there is no material on record to prove that he had taken any earnest effort to resume RPFC NO. 81 OF 2017 5 cohabitation with the 1[st] respondent. He also did not file any petition for a decree for restitution of conjugal rights. Hence, the said defence is without bonafides and is only to be rejected. 12. The respondents' case is that the revision petitioner was doing business and was earning Rs.1,00,000/- per month. In order to disprove their assertions, the revision petitioner produced Ext.R3 certificate issued by a Nursery to prove that he was earning only Rs.6,000/- per month plus a daily allowance of Rs.50/-, i.e., a total income of Rs.7,500/- per month. 13. Indisputably the revision petitioner was aged 44 years at the time of filing the application. 14. 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 RPFC NO. 81 OF 2017 6 duty of the husband to provide financial support to the wife and minor children; 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. 15. Going by the materials on record, it is seen that the petitioner's alleged affliction was only in connection with a surgery that occurred on 18.06.2016. There is nothing to prove that the revision petitioner is permanently disabled or suffering from a life threatening illness. Thus, I am of the definite view that the revision petitioner is an able bodied person. 16. An able bodied person in the year 2016, by any stretch of imagination would have earned Rs.1,000/- per day and would have got work for 25 days. Thus, I fix the notional income of the revision petitioner at Rs.25,000/per month. 17. 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 RPFC NO. 81 OF 2017 7 a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 18. In **Captain Ramesh Chander Kauushal v. Veena 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. 19. It is well settled in a plethora of judgments that the Courts are permitted to do some guesswork in arriving at the notional income of the husband/father and fixing the quantum of maintenance. 20. In the light of the law laid in the afore-cited decision and taking note of the fact that the revision petitioner is an able bodied person and having a notional income of Rs.25,000/-, I am of the definite view that the direction to the revision petitioner to pay the respondents RPFC NO. 81 OF 2017 8 monthly maintenance allowance @ Rs.4,000/- each, is only reasonable and justifiable. I do not find any reason to interfere with the said order. 21. The learned Counsel appearing for the revision petitioner contended that subsequent to the filing of the revision petition, the revision petitioner is suffering from some disability and the 2[nd] respondent has attained majority. If there is any change of circumstances, the revision petitioner would be at liberty to seek for cancellation of the order under Section 127 of the Code. 22. On an overall consideration of the pleadings and materials on record and the law on the point, 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 any merits and is only liable to be dismissed. Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited RPFC NO. 81 OF 2017 9 amount, while paying the balance amount due, as per the impugned order. sd/- **C.S.DIAS, JUDGE** rkc/14.12.23