Shaji v. Sharmina and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945** **RPFC NO. 76 OF 2017** **AGAINST THE ORDER/JUDGMENT MC 91/2016 OF FAMILY COURT, VADAKARA** ## **REVISION PETITIONER/S:** SHAJI AGED 43 YEARS AGED 43 YEARS, S/O.POKKER, MANIKKOTH HOUSE, KADALOOR (PO),NANDI, KOYILANDY, KOZHIKODE DISTRICT BY ADVS. SRI.P.V.ANOOP ## **RESPONDENT/S:** 1 SHARMINA AGED 35 YEARS AGED 35 YEARS, D/O.KUNHIKOYUA, SUROOR HOUSE, MADAKKARA,CHENGOTTUKAVU VILLAGE, EDAKKULAM (PO), KOZHIKODE DISTRICT,PIN-673306 2 SHASIYA MINOR AGED 16 YEARS AGED 16 YEARS,SUROOR HOUSE, MADAKKARA,CHENGOTTUKAVU VILLAGE, EDAKKULAM (PO), KOZHIKODE DISTRICT,PIN-673306 REPRESENTED BY HER MOTHER SHARMINA 3 SHANIBA MINOR AGED 13 YEARS AGED 13 YEARS,SUROOR HOUSE, MADAKKARA,CHENGOTTUKAVU VILLAGE,EDAKKULAM (PO), KOZHIKODE DISTRICT,PIN673306REPRESENTED BY HER MOTHER SHARMINA BY ADV SRI.ZUBAIR PULIKKOOL THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 76 OF 2017 2 (Dated this the 14[th] day of November, 2023) ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C.No.91/2016 of the Family Court Vatakara, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.4,000/- each to the respondents – his divorced wife and two children – from the date of order. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts** 2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure ('Code', for brevity) against the revision petitioner seeking monthly maintenance allowance. It was the case of the respondents that the 1[st] respondent is the divorced wife of the revision petitioner and the respondents 2 and 3 are the children born in their wedlock. Due to the matrimonial cruelty meted out on the 1[st] respondent by the revision petitioner, RPFC NO. 76 OF 2017 3 the respondents had to flee the matrimonial home and seek shelter in the paternal home of the 1[st] respondent. The revision petitioner was employed abroad in a supermarket as a Salesman and was earning a monthly income equivalent to Rs.50,000/-. Despite having sufficient means, the revision petitioner willfully refused to maintain the respondents. Hence, the application. 3. The revision petitioner had filed a written objection denying the allegations in the application. He contended that he had divorced the 1[st] respondent and she had filed M.C.No.22/2016 before the Judicial First Class Magistrate Court, Koyilandy under Section 3 of the Muslim Women's (Protection of Rights) on Divorce Act (in short, 'Act'). Therefore, the instant application filed by the 1[st] respondent was not maintainable in law. In addition to the above applications, the 1[st] respondent had also filed M.C.No.6/2016 under Section 12 of the Protection of Women from Domestic Violence Act and an interim order was passed against the revision petitioner directing him to RPFC NO. 76 OF 2017 4 pay interim maintenance @ Rs.6,000/- per month. Hence, the present application is unsustainable in law because there cannot be multiple claims on the same cause of action. The revision petitioner is a chronic diabetic patient and is depending on his relatives for his sustenance. The respondents' sole intention is to harass the revision petitioner. It is only because the 1[st] respondent had refused to look after the revision petitioner's mother, he was compelled to severe the marital relationship. Hence, the application may be dismissed. 4. The 1[st] respondent was examined as PW1 and Exts.A1 and A2 were marked in evidence through her. The revision petitioner was examined as RW1 and Exts.B1 to B3 series were marked through him. 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.4,000/- each. RPFC NO. 76 OF 2017 5 6. Confronted by the said order; the revision petition is filed. 7. Heard; Sri.Anoop P.V., the learned Counsel appearing for the revision petitioner and Sri.Zubair Pulikool, the learned Counsel appearing for the respondents. 8. Is there any illegality, impropriety or irregularity in the impugned order ? 9. The revision petitioner admits that he was married to the 1[st] respondent and later divorced her. He also admits that respondents 2 and 3 are the children born in his wedlock with the 1[st] respondent. 10. The respondents' case was that although the revision petitioner has sufficient means, he has willfully refused to maintain them. The respondents have no means to maintain themselves. Hence, the application. 11. The revision petitioner's defence was that since the 1[st] respondent has filed MC No.22/2016 under Section 3 of the Act and Section 12 of the Protection of Women RPFC NO. 76 OF 2017 6 from Domestic Violence Act, the respondents cannot simultaneously prosecute the application under Section 125 of the Code. Moreover, the revision petitioner is unemployed and sick, and is depending on his relatives for his sustenance. 12. 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. 13. 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. RPFC NO. 76 OF 2017 7 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 duty of the husband to provide financial support to the wife and minor children, 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. 15. It is well-settled in a plethora of judgments that, the Courts are permitted to do some guesswork to arrive at the quantum of maintenance. 16. In the case on hand, admittedly the 1[st] respondent is a divorced wife of the revision petitioner. Although the RPFC NO. 76 OF 2017 8 1[st] respondent is alleged to have filed M.C.22/2016 invoking the provisions of Section 3 of the Act, there is nothing on record to substantiate that the said proceeding has attained finality and an order to pay fair and reasonable maintenance has been passed. 17. It is no longer resintegra in view of the law laid down by this Court in **Kunj Mohammed vs. Ayishakutty** [2010 (2) KLT 71] that a divorced wife is also entitled to maintenance under Section 125 of the Code. 18. It is not disputed by the respondents that the jurisdictional Magistrate had passed an interim order directing the revision petitioner to pay them monthly maintenance @ Rs.6,000/- in M.C.No.6/2016. Again there is nothing on record to substantiate that the said proceeding has also attained finality. 19. The revision petitioner does not have a case that the respondents have the means to maintain themselves. He admits that he was earlier employed abroad but is now unemployed due to his illness. RPFC NO. 76 OF 2017 9 20. In **Bhuwan Mohan Singh** (supra), the Honourable Supreme Court has held that even if a person has no employment, it is his sacrosanct duty to maintain his wife and children. 21. Merely by alleging that the revision petitioner is suffering from diabetics, the same cannot exonerate him from maintaining the respondents. Taking into account the fact that the revision petitioner was aged 43 years at the time of filing the application and in view of the fact that there is no contra evidence to prove that the revision petitioner is suffering from any serious illness, I deem him to be an able bodied person and fix his notional income @ Rs.25,000/- per month. 22. Viewed in the above background, I am of the definite view that the impugned order directing the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.4,000/- each is only reasonable and justifiable. 23. In **Rajnesh** (supra), the Honourable Supreme RPFC NO. 76 OF 2017 10 Court has dealt with the issue of overlapping of maintenance. It is clarified that the husband/father is only liable to pay maintenance under the one statute. Thus, I am of the view that the revision petitioner is only liable to pay Rs.12,000/- per month as monthly maintenance allowance to the respondents until this order is modified or varied, and the direction to pay maintenance under any other statute will stand merged with this order. 24. On an overall consideration of the pleadings and materials 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. Resultantly, the revision petition is dismissed confirming the impugned order passed by the Family Court. Needless to mention, if the revision petitioner has paid any maintenance allowance as per the interim orders of this Court, he would be entitled for adjustment of the deposited amount while paying the arrears of maintenance RPFC NO. 76 OF 2017 11 as per the impugned order. It is also clarified that the revision petitioner would be liable to pay maintenance allowance to the respondents only as per this order, until modified or varied, and the direction to pay maintenance under any other statute will stand merged with this order. Sd/- **C.S.DIAS JUDGE** rkc/14.11.23