R.P.(FC)Nos.68 & 219/2016

R.P.(FC)Nos.68 & 219/2016 -:1:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945 ``` ``` RPFC NO. 68 OF 2016 ``` ``` AGAINST THE ORDER DATED 16.12.2015 IN MC 208/2006 OF FAMILY COURT, PALAKKAD ``` ``` REVISION PETITIONER/RESPONDENT IN M.C.NO.284/2012 IN M.C.NO.208/2006 ``` ``` SANTHOSH KUMAR, AGED 41 YEARS, S/O.LATE RAMAKRISHNAN, KRISHNALEELA, MATTUMANTHA, C.N.PURAM POST, PALAKKAD TALUK & DISTRICT-678 005. ``` ``` BY ADV SMT.V.K.HEMA ``` ## `RESPONDENT/ PETITIONERS IN M.C.284/2012 IN M.C.208/2006` ``` 1JAYALAKSHMI, AGED 35 YEARS, D/O.RAJAN, KALARIKKAL VEEDU, KOCHAMKULAM THENKURISSI POST, ALATHUR TALUK, PALAKKAD DISTRICT-678 671. ``` ``` 2SREERAG, AGED 8 YEARS(MINOR), S/O.JAYALAKSHMI, KALARIKKAL VEEDU, KOCHAMKULAM THENKURISSI POST, ALATHUR TALUK, PALAKKAD DISTRICT-678 671. ``` ``` BY ADVS.DHANYA P.ASHOKAN M.R.VENUGOPAL(K/000472/1994) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.12.2023, ALONG WITH RPFC.219/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)Nos.68 & 219/2016 -:2:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF DECEMBER 2023 / 22ND AGRAHAYANA, 1945 ``` ``` RPFC NO. 219 OF 2016 AGAINST THE ORDER DATED 16.12.2015 IN MC 208/2006 OF FAMILY COURT, PALAKKAD ``` ## `REVISION PETITIONER/PETITIONER IN M.C.408/2012 IN M.C.208/2006` ``` SANTOSH KUMAR, AGED 41 YEARS, S/O.LATE RAMAKRISHNAN, KRISHNALEELA, MATTUMANTHA, C.N.PURAM POST, PALAKKAD TALUK DISTRICT-678 005. ``` ## `RESPONDENT/RESPONDENT IN M.C.408/2012 IN M.C.208/2006` ``` JAYALAKSHMI, AGED 29 YEARS D/O.RAJAN, KALARIKKAL VEEDU, KOCHAMKULAM THENKURISSI POST, ALATHUR TALUK, PALAKKAD DISTRICT-678 671. ``` ``` BY ADVS.DHANYA P.ASHOKAN M.R.VENUGOPAL(K/000472/1994) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13.12.2023, ALONG WITH RPFC.68/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)Nos.68 & 219/2016 -:3:- Dated this the 13[th] day of December, 2023 ## **C O M M O N O R D E R** The revision petitions are filed challenging the orders in M.C.Nos.284 & 408/2012 of the Family Court, Palakkad. As the parties are the same, the revision petitions are being disposed of by this common order. 2. The revision petitioner in these revision petitions is the husband of the first respondent in R.P. (FC)No.68/2016, who is the sole respondent in R.P. (FC)No.219/2016. The second respondent in R.P. (FC)No.68/2016 is the child born in the wedlock between the revision petitioner and the first respondent. For convenience, the parties are referred to as revision petitioner and wife and child. 3. The wife and child of the revision petitioner had filed M.C.No.208/2006 before the Family Court, for an order of maintenance. The application was allowed on 01.02.2008, ordering the revision petitioner to pay ## R.P.(FC)Nos.68 & 219/2016 -:4:- monthly maintenance allowance to the wife @ Rs.2,000/- and to the child @ Rs.1,000/-. Nearly four years after the order, the wife and child filed M.C.No.284/2012, under Section 127 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), for enhancement of monthly maintenance allowance and the revision petitioner filed M.C.No.408/2012, under the same provision to cancel the order of maintenance granted to the wife. 4. The case of the wife and child in M.C.No.284/2012 was that, consequent to the order in M.C.No.208/2006, there was a change of circumstances and their living expenses had increased, especially since the child was studying in the II[nd] Standard. Hence, they were unable to maintain themselves with the maintenance allowance ordered in M.C.No.208/2006. The revision petitioner was doing business in distribution of surgical equipments in R.P.(FC)Nos.68 & 219/2016 -:5:- Kerala and Tamil Nadu and was earning Rs.1,00,000/per month. He was also having landed properties and a house. Hence, the maintenance allowance may be enhanced to Rs.5,000/- & Rs.4,000/-, respectively from the present rate. 5. The application was resisted by the revision petitioner, who contended that the wife was a postgraduate in Arts and was well-employed as a school teacher. He was not earning Rs.1,00,000/-, as alleged. He had sold a joint-property to clear off his liabilities. The wife has attached his properties in an original petition filed before the Family Court. Hence, the application may be dismissed. 6. Almost on the same lines in the written objection in M.C.No.284/2012, the revision petitioner sought to cancel the order in favour of the wife in M.C.No.208/2006, and the wife resisted the application R.P.(FC)Nos.68 & 219/2016 -:6:- on the same pleadings in her application in M.C.No.284/2012. 7. The Court tried the two cases Family separately. In M.C.No.284/2012, the wife got herself examined as PW1 and marked Exts P1 to P3 in evidence. The revision petitioner got himself examined as CPW1 and marked Exts D1 to D6(b) in evidence. In M.C.No.408/2012, the revision petitioner got himself and two other witnesses examined as PWs 1 to 3 and marked Exts P1 to P9 in evidence. The wife got herself examined as CPW1. 8. The Family Court, after analysing the pleadings and materials on record, by independent orders, partly allowed M.C.No.284/2012 by ordering the revision petitioner to pay enhanced maintenance allowance to the wife and child @ Rs.3,000/- & Rs.2,000/-, respectively and M.C.No.408/2012 filed by R.P.(FC)Nos.68 & 219/2016 -:7:- the revision petitioner to cancel the order in M.C.No.208/2006 was dismissed. 9. Aggrieved by the separate orders passed against the revision petitioner, these revision petition are filed. 10. Heard; Smt. V.K. Hema, the learned counsel appearing for the revision petitioner and Smt. Dhanya P. Ashokan, the learned counsel appearing for the respondents – wife and child. 11. Is there any illegality, impropriety or irregularity in the impugned order? 12. The revision petitioner admits his marriage with the first respondent and the paternity of the second respondent. He also does not dispute the fact that the Family Court had by the order dated 01.02.2008 in M.C.No.208/2006 directed the revision petitioner to pay monthly maintenance allowance to his wife and child @ Rs.2,000/- & Rs.1,000/-, respectively. R.P.(FC)Nos.68 & 219/2016 -:8:- 13. It is also brought to the notice of this Court that, the revision petitioner had challenged the order in M.C.No.208/2006 before this Court by filing R.P.(FC) No.125/2008, but, the revision petition was dismissed on 07.08.2009, confirming the order in M.C.No.208/2006. Thus, the revision petitioner’s liability to maintain his wife and child was confirmed by this Court. 14. It is four years after the passing of the order in M.C.No.208/2006, the wife and child filed M.C.No.208/2006 for enhancement of maintenance allowance on the ground of change of circumstances. Immediately, the revision petitioner filed M.C.No.408/2012, to cancel the order in M.C.No.208/2006 as against the wife. 15. The wife and child’s case in M.C.No.284/2012 was that the revision petitioner was doing business in surgical equipments and was earning Rs.1,00,000/- per R.P.(FC)Nos.68 & 219/2016 -:9:- month. Their living expenses had increased and, therefore, they require enhancement of maintenance allowance. 16. The revision petitioner’s defence in M.C.No.284/2012 and his application in M.C.No.408/2012 was that, the wife was a postgraduate and was working as a school teacher. He also contended that he had suffered huge loss in his business and also his landed properties were attached by wife in O.P.No.1101/2006. 17. In order to prove the revision petitioner’s assertion regarding the employment of the wife, he summoned the Headmistress and an employee of the Sabari Nursery School, where the wife was allegedly employed. However, PWs 2 & 3 had testified that the wife was not employed in the school and her name does not figure in the attendance and acquaintance registers. Therefore, the revision petitioner’s allegation R.P.(FC)Nos.68 & 219/2016 -:10:- was not proved. Similarly, the revision petitioner had contended that his business had run into loss. But, he did not produce any records to substantiate the assertion that he does not have the means to maintain the respondents. 18. The Family Court, after separately analysing the pleadings and materials on record, by the independent orders concluded that the revision petitioner is liable to maintain his wife and child @ Rs.3,000/- & Rs.2,000/-, respectively. 19. Even assuming that the wife was employed as a teacher as alleged by the revision petitioner, the Hon'ble Supreme Court in **Sunita Kachwaha and Others v. Anil Kachwaha** [2014 KHC 4690] has held that merely because the wife is a qualified postgraduate and was earning something, that is not a ground to dis-entitle her to claim maintenance. The R.P.(FC)Nos.68 & 219/2016 -:11:- same view has been reiterated in **Shylaja & Anr. v. Khobbana** [2017 KHC 2725]. 20. 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. 21. In **Captain Ramesh Chander Kaushal 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. 22. In **Bhuwan Mohan Singh v. Meena & Ors.** [(2015) 6 SCC 353], the Hon'ble Supreme Court has R.P.(FC)Nos.68 & 219/2016 -:12:- 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 husband was 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. 23. 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. 24. After bestowing my anxious consideration to the pleadings and materials on record and taking note of the fact that the revision petitioner has failed to R.P.(FC)Nos.68 & 219/2016 -:13:- establish that the wife was earning any income and that he had failed to produce any material to prove his income, I draw adverse inferences against him and accept the assertion of the respondents. Therefore, I confirm the impugned order in M.C.No.284/2012, ordering the revision petitioner to pay the respondents monthly maintenance allowance Rs.3,000/- & Rs.2,000/-, respectively, which is only reasonable and justifiable. 25. 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 orders warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984. The revision petitions are devoid of any merits and are only liable to be dismissed. Resultantly, the revision petitions are dismissed. Needless to mention, if the revision petitioner has paid R.P.(FC)Nos.68 & 219/2016 -:14:- any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited amount, while calculating the arrears of maintenance payable as per the impugned order in M.C.No.284/2012. Sd/- ## **C.S.DIAS,JUDGE** DST/13.12.23 //True copy// P.A. To Judge