Shalini v. Lakshmanan (RP(FC) Nos. 97 and 154 of 2021)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 RPFC NO. 97 OF 2021 AGAINST THE ORDER DATED 09.02.2021 IN MC NO.22/2019 OF FAMILY COURT, KASARAGOD ``` ## `PETITIONERS/PETITIONERS:` ``` 1SHALINI, AGED 42 YEARS, W/O LAKSHMANAN AND D/O.KUNHIRAMAN, RESIDING AT SOUPARNIKA NILAYAM, PUDUKKAI(P.O), PUDUKKAI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,PIN-671314. 2POOJA, AGED 23 YEARS, D/O.SHALINI AND LAKSHMANAN, RESIDING AT SOUPARNIKA NILAYAM, PUDUKKAI(P.O), PUDUKKAI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,PIN-671314. 3ADHEENA, AGED 21 YEARS, D/O.SHALINI AND LAKSHMANAN, RESIDING AT SOUPARNIKA NILAYAM, PUDUKKAI(P.O),PUDUKKAI VILLAGE, HOSDURG TALUK,KASARAGOD DISTRICT,PIN-671314. BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.JAISON ANTONY ``` ## `RESPONDENT/RESPONDENT:` ``` LAKSHMANAN, AGED 57 YEARS, S/O.BATTYAN,RESIDING AT KOOVATTI, CHOYYAMKODE,CHAYYOTH(P.O),KARINTHALAM VILLAGE, HOSDURG TALUK,KASARAGOD DISTRICT, PIN-671314. ``` ``` BY ADV.SRI.A.ARUNKUMAR ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27.06.2022 , ALONG WITH RPFC.154/2021, THE COURT ON 09.05.2023 PASSED THE FOLLOWING: ``` RP(FC) Nos.97 and 154 of 2021 2 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 9[TH] DAY OF MAY 2023 / 19TH VAISAKHA, 1945 ``` ``` RPFC NO. 154 OF 2021 ``` ``` AGAINST THE ORDER DATED 09.02.2021 IN MC NO.22/2019 OF FAMILY ``` ``` COURT, KASARAGOD ``` ## `REVISION PETITIONER/RESPONDENT:` ``` LAKSHMANAN, AGED 55 YEARS, S/O.BATTYAN, RESIDING AT KOOVATTI, CHOYYAMKODE, CHAYYOTH P.O., KARINTHALAM VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT, PIN-671314. ``` ``` BY ADV SRI.A.ARUNKUMAR ``` ## `RESPONDENTS/PETITIONERS:` ``` 1SHALINI, AGED 40 YEARS, D/O.KUNHIRAMAN, RESIDING AT SOUPARNIKA NILAYAM, P.O.PUDUKKAI, PUDUKKAI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-671314. 2POOJA, AGED 21 YEARS, D/O.SHALINI AND LAKSHMANAN, RESIDING AT SOUPARNIKA NILAYAM, P.O.PUDUKKAI, PUDUKKAI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-671314. 3ADHEENA, AGED 19 YEARS, D/O.SHALINI AND LAKSHMANAN, RESIDING AT SOUPARNIKA NILAYAM, P.O.PUDUKKAI, PUDUKKAI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT, PIN-671314. ``` ``` BY ADV SRI.JAWAHAR JOSE ``` ``` THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD 27.06.2022 ALONGWITH RPFC.NO.97/2021, THE COURT ON 09.05.2023 PASSED THE FOLLOWING: ``` RP(FC) Nos.97 and 154 of 2021 3 ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - - RP(FC) Nos. 97 and 154 of 2021 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of May, 2023 ## O R D E R The above revisions are directed against an order passed by Family Court, Kasaragod (for short ‘the court below’) on 09.02.2021 in M.C.No.22/2019. 2. Revision Petitioners in R.P.(FC) Nos.97/2021 and 154/2021 respectively are the petitioners and the respondent in M.C.No.22/2019 which was filed seeking for monthly maintenance allowance under Section 125(1) (a) and (b) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). 3. Petitioners 1 to 3 in the M.C. respectively are the legally wedded wife and two major daughters aged 21 and 19 years as on the date of filing of it. The 1[st] petitioner got married to the respondent and in the marriage solemnised on 23.04.1994 as per Hindu religious rites and ceremonies, 2[nd] and 3[rd] petitioners were born. RP(FC) Nos.97 and 154 of 2021 4 4. Respondent was working abroad at the relevant time of marriage and therefore, immediately after the marriage they left for abroad. Marital life of the 1[st] petitioner was very happy in the initial days of marriage and thereafter the respondent started to manhandle the 1[st] petitioner in front of 2[nd] and 3[rd] petitioners. The respondent neglected to maintain the petitioners from 10.12.2017. The 1[st] petitioner being devoid of any income started to depend upon her relatives for sustenance. 5. It was alleged that the respondent being an able bodied man and worker of a grocery shop, earning Rs.30,000/- monthly therefrom, is liable to maintain petitioners 2 and 3 who are his major daughters, born to him in his wedlock with the 1[st] petitioner. He failed to maintain the petitioners and being devoid of any means for maintenance, they approached Family Court, Kasaragod seeking to obtain monthly maintenance allowance by filing the above M.C. They claim Rs.10,000/- as monthly maintenance allowance in favour of each of them. 6. The respondent had filed counter statement contending that on account of the extra marital relationship RP(FC) Nos.97 and 154 of 2021 5 maintained by the 1[st] petitioner with a retired police Sub-Inspector by name Mr.Raveendran, his relationship with the 1[st] petitioner got strained, that the 1[st] petitioner used to travel with Mr.Raveendran to different places of their choice, that the respondent is not having sufficient income as pleaded by the petitioner as he was working only as a helper in a grocery shop, that he was not holding any landed property on his own, that each of the petitioners have independent income of their own, that petitioners 2 and 3 being employed as nurses in a private hospital at Mangalore have sufficient income to maintain themselves and therefore the M.C.filed by them is only liable to be dismissed. 7. Before the court below, 1[st] petitioner was examined as PW1 and the respondent as RW1. Exts.P1 to P5 were marked on the side of the petitioners and Exts.D1 to D12 were marked on the side of the respondent. 8. The court below appreciated the evidence adduced by both parties and found that the 1[st] petitioner alone is entitled to get monthly maintenance allowance at the rate of Rs.5,000/-. Claims of petitioners 2 and 3 for maintenance allowance were denied. RP(FC) Nos.97 and 154 of 2021 6 9. Aggrieved by the meager sum stands ordered as monthly maintenance allowance in favour of the 1[st] petitioner and denial of the claim of the 2[nd] and the 3[rd] petitioners for monthly maintenance allowance, RP(FC) No.97/2021 was filed. Challenging the order passed by the court below in M.C.No.22/2019, allowing Rs.5,000/- as the monthly maintenance allowance in favour of the 1[st] petitioner who was the wife of the respondent, that RP(FC) No.154/2021 was preferred by the respondent in the M.C. 10. It is contended by Sri.Jawahar Jose, the learned counsel for the revision petitioners in RP(FC) No.97/2021, that the court below is erred in not awarding monthly maintenance allowance in favour of the daughters of the respondent, who are petitioners 2 and 3 in the M.C. According to him the reason for denial was stated by the court below in the impugned order as their attainment of age of majority. According to him, the court below went wrong in arriving at a finding in the impugned order that the daughters of the respondent being employed as nurses are having sufficient earning and therefore are precluded from claiming maintenance allowance. According to him as per the direction RP(FC) Nos.97 and 154 of 2021 7 of the Apex Court in **Rajnesh v. Neha and Another [2020 SCC online SC 903]** , the 1[st] petitioner had filed an affidavit disclosing her assets and liabilities, wherein a specific averment was made that the 2[nd] petitioner is a student of MSc Nursing at Yenopaya Medical College at Mangalore and the 3[rd] petitioner is a student of BSc Nursing in the same college. According to him, document evidencing the above factum was also produced by the 1[st] petitioner before the court below. The respondent failed to controvert those aspects sworn to by the 1[st] petitioner in his affidavit by convincing evidence. Therefore, the Family Court went wrong in arriving at a finding that 2[nd] and 3[rd] petitioners being employed and earning, are disentitled to get any sum as monthly maintenance allowance from the respondent. 11. It is contended secondly by the learned counsel that a Hindu father is obliged under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 (for short ‘the Act’) to maintain his unmarried daughters who are unable to maintain themselves. According to him the right of an unmarried daughter to claim maintenance allowance under Section 20 of the Act is absolute when they are not in a position to maintain RP(FC) Nos.97 and 154 of 2021 8 themselves. According to him the right of the daughters for maintenance under Section 20 of the Act also stands affirmed by judicial pronouncements of the Apex Court in **Dr.Jagdish Jugtawat v. Smt.Manjulata and Others** [ **2002 (5) SCC 422]** and **Abhilasha v. Parkash and Others [2020 SCC online SC 736]** . It was canvassed by the learned counsel for the revision petitioners in the light of the decisions supra that a Hindu father cannot wriggle out from his legal obligation to maintain his unmarried daughters, till their marriage. 12. The learned counsel further canvassed that as held by the Apex Court in the above decisions, the Family Court is empowered to decide a case under Section 125 Cr.P.C. as well as one under Section 20 of the Act. According to him the jurisdiction of a Family Court to grant monthly maintenance allowance under Section 125 Cr.P.C. and Section 20 of the Act stands approved by the decisions referred to supra. 13. The contention thirdly raised by the learned counsel for the revision petitioners was that Rs.5,000/- stands awarded by the Tribunal in favour of the 1[st] petitioner is inadequate, as it is only a meagre sum. According to him, with Rs.5,000/- stands awarded as monthly maintenance RP(FC) Nos.97 and 154 of 2021 9 allowance, the 1[st] petitioner is unable to meet even her basic requirements. According to him, monthly maintenance allowance is meant to ameliorate the agony, anguish and financial sufferings of a woman who was abandoned by her husband for no reason of her own. 14. The learned counsel contended fourthly that the finding of the court below that the 1[st] petitioner was maintaining an extramarital relationship with one Mr.Raveendran was based on her admission of an allegation raised by the respondent that she had travelled with him in car. According to him travelling with a man in a car will not satisfy the requirements of an offence of adultery as envisaged under Section 494 of the Indian Penal Code (for short ‘the IPC’) and will not come within the meaning of the word, ‘adultery’ as contemplated under Sub-section (4) of Section 125 Cr.P.C, so as to deprive a wife from getting monthly maintenance allowance from her husband. According to him the Family Court went wrong in holding that the 1[st] petitioner was living in an extra marital relationship with one Mr.Raveendran, without any valid and justifiable reason. RP(FC) Nos.97 and 154 of 2021 10 15. In RP(FC) No.154/2021, challenge was raised by the respondent in the M.C. against the order passed on 09.02.2021. Arguments were advanced on behalf of the respondent by Adv.A.Arunkumar that the court below has erred in arriving at a finding that the 1[st] petitioner is entitled to get monthly maintenance allowance from the respondent. It is contended by the learned counsel secondly that the court below has also gone wrong in reaching a finding that respondent in the M.C. is getting sufficient income and therefore, is capable of paying Rs.5,000/- as monthly maintenance allowance to the 1[st] petitioner. According to him the respondent was working as a helper in a grocery shop and having only a monthly income of Rs.10,000/-. According to him a medical document was also produced and marked in evidence to establish that respondent was suffering from some ailments. According to him the court below did not rely on the medical documents for want of pleadings to that effect in the counter statement. The learned counsel canvassed for a reversal of the finding that the 1[st] petitioner is entitled to get monthly maintenance allowance from the respondent and award of Rs.5,000/- towards that. RP(FC) Nos.97 and 154 of 2021 11 16. The contention thirdly raised was that the court below has arrived at a finding that the 1[st] petitioner and a man namely Mr.Raveendran were living in illicit relationship and therefore, is not justified in allowing the claim of the former for monthly maintenance allowance. According to him, the court below ought to have discarded the claim of the 1[st] petitioner for monthly maintenance allowance for that reason and dismissed the M.C. 17. The learned counsel urged on the basis of the plea of the petitioners that none among them were capable enough to maintain themselves, that the 2[nd] and 3[rd] petitioners were not employed and incapable to maintain themselves and that for want of materials, it stands established that they are students of Nursing. None of them entered into the box also to depose those aspects. 1[st] petitioner failed to adduce any convincing evidence to establish that she has no means to maintain herself. According to him, the revision petitioner thus succeeded in proving the contentions raised in his counter statement and therefore, the court below ought not to have allowed the M.C. in part and awarded Rs.5,000/- as maintenance allowance in favour of the 1[st] petitioner. RP(FC) Nos.97 and 154 of 2021 12 18. The learned counsel for the revision petitioners in RP(FC)No.97/2021 has relied on two decisions of different High Courts and one of the Apex Court to rest his contention that the revision petitioners in RP(FC) No.97/2021 are entitled to get monthly maintenance allowance, despite the factum admitted that they have attained the age of majority. In a decision cited by the learned counsel, delivered by a Single Judge of the **High Court of Judicature at Madras** on 17.06.2019 in Criminal O.P.No.15336 of 2019, an order passed under Section 125 Cr.P.C. by Family Court, Chennai was under challenge. The petition was preferred by the petitioner therein under Section 125 Cr.P.C. as MC SR No.185/2019 seeking for monthly maintenance allowance from her father. Petitioner claimed to be aged 18 years and an unmarried daughter of the respondent. She sought for maintenance from the respondent father on the ground that she is unable to take care of the expenses of her education. The court below rejected the petition for the reason that she is a major. The court also found that in terms of sub-section (1) (b) and (c) of Section 125 Cr.P.C., the petitioner is not entitled to get any maintenance allowance since she did not establish that she RP(FC) Nos.97 and 154 of 2021 13 was suffering from any physical or mental disablement. The court in **Noor Saba Khatoon Vs. Mohammed.Quasim [1997 (6) SCC 323]** referred to the personal law and the law envisaged under Section 125 Cr.P.C. and held that the obligation of a Muslim father having sufficient means to maintain his minor children, who are unable to maintain themselves, till they attain their age of majority and female daughters till they get married is absolute, notwithstanding the fact that minor children are living with the divorced wife. 19. The second decision cited by the learned counsel for the revision petitioners is related to a judgment passed by **High Court of Judicature at Bombay** while sitting in Criminal Appellate Jurisdiction. In the said case, a petition was filed by the mother claiming maintenance allowance for her major daughter under Section 125 Cr.P.C. The legal issue considered in the case was whether a major daughter is entitled to get monthly maintenance allowance under Section 125 Cr.P.C. and whether a mother is competent to file proceedings claiming maintenance allowance on behalf of her major daughter. RP(FC) Nos.97 and 154 of 2021 14 20. The facts of the case in brief are to the effect that the petitioner belonging to Roman Catholic was married to respondent in the year 1988 and three children were born in the wedlock. Out of the children two sons are aged 25 and 24 years respectively and the only daughter was aged 19 years at the relevant time of filling of the writ petition. The claim of the petitioner was that all the major children are residing with her. According to the petitioner the respondent had deserted her in the year 1997 and thereafter she was living with her minor children. The respondent was living an adulterous life. Therefore, the petitioner filed an application under Section 125 Cr.P.C. before Family Court, Mumbai seeking for monthly maintenance allowance for her three children who then were minors. The issues were dealt with and solved amicably on terms of consent signed by both parties on 25.04.2003. The respondent agreed to pay maintenance allowance at the rate of Rs.1,000/- per month towards each minor child. In view of the change in circumstances, the petitioner moved an application seeking for enhancement of maintenance allowance for three children. By judgment dated 30.12.2009 the respondent was directed to pay a sum of Rs.5,000/- per RP(FC) Nos.97 and 154 of 2021 15 month towards maintenance allowance of second son till the attainment of his age of majority, and Rs.3,000/- per month, for maintenance of minor daughter who has attained the age of majority on 21.08.2015. The claim of the petitioner was that though her daughter has attained the age of majority is financially depending on the petitioner, in view of her higher education which require considerable amount to meet the day today expenses. According to the petitioner, she is unable to arrange for the expenses of her daughter as she is not getting any financial assistance from her elder son who had already obtained an educational loan for graduation and is in the process of repayment of the same. As far as the second son is concerned, according to the petitioner, he was graduated but, without any job. Maintenance at the rate of Rs.25,000/- was sought by filing an application under Section 125 Cr.P.C. before Family Court, Bandra. The case of the petitioner was that though her major sons are residing with her they are not contributing towards her maintenance. According to her, her daughter is pursuing her studies and in the academic year 2015-16 she had to pay a sum of Rs.1,02,834/- as admission fee at Xavier’s Institute of Engineering, Mahim. She has also RP(FC) Nos.97 and 154 of 2021 16 paid a sum of Rs.60,000/- as contribution towards development of educational infrastructure of the Institute. It is further stated in the application that in the next two academic years, the educational fee for the daughter is likely to be increased. Every other expenses are also likely to be increased. According to her, she is left with no savings and therefore, approached the Family Court seeking to obtain Rs.15,000/- per month as maintenance allowance for interim sustenance from the date of application. The respondent opposed the application stating that a major daughter is not entitled to claim maintenance. According to him the respondent husband is not bound by law to maintain the major children. According to him the respondent being a driver by occupation, about to retire and suffering from severe health hazards is not in a position to provide maintenance allowance to his major children. 21. The Family Court also observed that the petitioner is not entitled to get maintenance allowance for herself as she is working as a school teacher and earning Rs.48,000/- per month. The court further observed that maintenance allowance can be granted to the minor children only and the major daughter RP(FC) Nos.97 and 154 of 2021 17 cannot claim maintenance allowance through her mother. Accordingly the court held that the petitioner is not entitled to claim maintenance allowance for her major daughter under Section 125 Cr.P.C and thus dismissed the application. 22. The High Court after delving on Section 125 Cr.P.C. directed the Principal Judge, Family Court, Mumbai to entertain the claim of the petitioner by properly examining the willful neglect or refusal of the respondent to maintain the daughter and also the inability of the petitioner to arrange for the maintenance of his daughter. Accordingly the application filed by the petitioner-wife was remanded back to the Family Court for proper adjudication by applying the parameters for grant of maintenance allowance. ## In another case the **High Court of Judicature at Madras** has held: “ It is very clear from the above judgments that eventhough Section 125 restricts the payment of maintenance to the children till they attain majority, when it comes to the daughter, Courts have taken a consistent stand that eventhough the daughter has attained majority, she will be entitled for maintenance till she remains unmarried by virtue of Section 20(3) of RP(FC) Nos.97 and 154 of 2021 18 the Hindu Adoption and Maintenance Act, 1956. In order to avoid multiplicity of proceedings, the Courts have taken a consistent stand that the petition under Section 125 of Cr.PC can be entertained without pushing her to file an independent petition seeking for maintenance under Section 20(3) of the Hindu Adoption and Maintenance Act, 1956.” 23. The learned counsel has relied on **Meharunnisa** **D/o Syed Habeeb @ Syed Habeebulla, v. Syed Habeeb @ Syed Habeebulla, [2014 SCC Online Kar 11926]** where a major Mohammedan girl (unmarried major daughter) who succeeded before J.M.F.C. Tumkur in Crl.Misc.No.455/2007 by getting an order against her father directing him to pay monthly maintenance allowance at the rate of Rs.800/- till her marriage, under Section 125 Cr.P.C., but failed in the Revision Petition before the Fast Track Court has approached this Court for restoration of the orders of the J.M.F.C., by setting aside the order passed by the Fast Track Court, Tumkur in Crl.R.P.No.149/12 dated 25.10.2013. The specific contention raised by the petitioner was that though she is a major is helpless, being incapable of maintaining herself and that the RP(FC) Nos.97 and 154 of 2021 19 respondent is gainfully employed in Karnataka State Reserve Police, drawing a handsome salary and capable enough to maintain her and also bound to maintain her till her marriage. It was held by the court: ## “xxxx 56. Applying the above said principles to the facts of the case on hand, the Mohammedan daughter who has got a right to be maintained by her father under Muslim personal Law, as already noted above, the infringement of such right of that lady itself amounts to an injury which can be very well be equated to the word 'injury' used in S.125(c) of Cr.P.C. Physical or mental abnormality has to be established before the Court of law by means of evidence. But the mental or physical injury as already narrated above, physical injury can be perused by the appearance or by means of senses but mental injury it is nothing but malice in law which can be gathered on the basis of violation of a legal right to claim maintenance vested under any law for the time being in force including S.125 of Cr.P.C. If such right is infringed by the adversary then automatically it will fall u/s. 125 (c) of Cr.PC. The other riders which are there in the said provision also have to establish that they are unable to maintain themselves has to be strictly complied. If that right to claim maintenance of that lady is infringed, definitely it can be called as an **injury** which RP(FC) Nos.97 and 154 of 2021 20 can very well be fit into the definition of **mental injury** and in my opinion that must have been the intention of the legislators and the parliamentarians in introducing the word ' **injury** ' u/s. 125 (c) of the Cr.P.C. 57. Having come to such a conclusion, it is also to be noted here that only major daughters whether Hindu, Muhammadan, Parsi or Christian wherever their rights are recognized under any other personal law or statute for the time being in force that they are entitled for maintenance at the hands of their father or anybody till they get married, if they are unable to maintain themselves and father is capable of maintaining them. Then only the word 'injury' used in Section 125 (c) of Cr.PC can be pressed into service in order to hold that their right has been infringed and therefore, they are entitled for maintenance u/s. 125 of the Cr.P.C. xxxx" 24. Thus it was held that since it is averred in the petition seeking maintenance allowance that the daughter of the respondent is not having any source of income to maintain herself and that the respondent in view of his job under Reserve Police in State of Karnataka, and drawal of a handsome salary is capable of maintaining the petitioner and RP(FC) Nos.97 and 154 of 2021 21 that the respondent had violated his obligation when he neglected and refused to maintain her. No acceptable materials have been produced to show that the petitioner has got any property in her name, or is gainfully employed to refuse her maintenance allowance and therefore is entitled to get maintenance allowance till her marriage. 25. In **Abhilasha V. Parkash and Others [2020 (5) KHC 235]** relied on by the learned counsel, a Hindu unmarried daughter has sought for maintenance allowance and it was held that she is entitled to claim maintenance only till her attainment of age of majority or till she remains unmarried, provided she pleads and proves that she is unable to maintain herself. It was held by the Apex Court that an application under Section 20 of the Act has to be filed for claiming maintenance allowance. Thus it was held by the Apex Court relying on Section 20(3) of the Act, that as a proposition of law an unmarried Hindu daughter can claim maintenance from her father till she is married, provided she had pleaded and established that she is unable to maintain herself. But for enforcement of such a right an application has to be filed under Section 20 of the Act. Therefore, it was held in the case RP(FC) Nos.97 and 154 of 2021 22 that an unmarried daughter who had raised a specific plea that she is incapable of maintaining herself despite the factum that she has attained the age of majority, and when the respondent is having sufficient income to maintain her, she would be entitled to get maintenance allowance as envisaged under Sub-Section (3) of Section 20 of the Act from the respondent, who is none other than her father. For that the revision petitioner herein has only to file a separate application seeking maintenance allowance under Section 20 of the Act. The Family Court is held as empowered to pass orders in an application filed by the petitioner seeking maintenance under Section 20 (3) of the Act. 26. In RP(FC) No.97/2021, the quantum of maintenance stands awarded by the Family Court in favour of the 1[st] petitioner in M.C.No.22/2019, is under challenge. It is found that the respondent has raised a contention in his counter statement that the 1[st] petitioner was living in illicit relationship with one Mr.Raveendran. The averment particularly made in the M.C. with a view to attract illicit relationship was that the 1[st] petitioner alongwith her daughter had travelled with Mr.Rveendran in a vehicle. This Court is highly surprised to RP(FC) Nos.97 and 154 of 2021 23 learn that travelling alongwith a person tantamounts to living in illicit relationship with that person. 27. The Family Court on the basis of the allegation of the respondent in the counter affidavit had made an observation in the impugned order that the 1[st] petitioner in the M.C. was living in illicit relationship with one Mr.Raveendran, who is a retired police officer. This Court without any hesitation would say that the Family Court undoubtedly has gone wrong in making such an observation. 28. It is true that under Section 125 Cr.P.C. a lady is disentitled to get monthly maintenance allowance, if the respondent establishes before the court that the lady was living in adultery with some other person. The term adultery, requires proof of immoral relationship in a high degree. In order to take the benefit of Sub-section (4) of Section 125 Cr.P.C., the respondent has to establish before the Family Court that the wife seeking maintenance allowance has been living in adultery with some person. Travelling with a man by a lady cannot, to any stretch of imagination, attracts an offence of adultery as envisaged under Sub-section (4) of Section 125 Cr.P.C. This Court has held in **Rupa C and Another v.** RP(FC) Nos.97 and 154 of 2021 24 **Puthalath Anil Kumar** [2021 (2 KHC 38] that living in adultery denote a continuous course of conduct of immorality or lapses from virtue as distinguished from isolated instances of immorality. True that during cross examination, PW1 had admitted that herself alongwith one of her daughters had travelled with a retired Sub-Inspector in a car. She had also admitted that a newspaper has reported about the gathering of the people of the locality near to her house, when Mr.Raveendran, the Sub-Inspector of Police visited her once. Those circumstances are undoubtedly insufficient to attract adultery. The Family Court though made observations as above, awarded Rs.5,000/- as monthly maintenance allowance in favour of the 1[st] petitioner, the wife of the respondent. It was proved before the Family Court from the oral evidence tendered by PW1 who is none other than the 1[st] petitioner that herself and her children were neglected to be maintained by the respondent from 10.12.2017. It is also established that respondent left the company of PW1 after causing bodily hurt on her on 21.01.2016. To establish the same, materials were also produced and marked in evidence as Exts.P1 and P2. Since the period covered by the RP(FC) Nos.97 and 154 of 2021 25 documents are not pertaining to the one under consideration, those were discarded. 29. Admittedly, petitioners 2 and 3 have attained the age of majority. There is nothing on record to establish that petitioners 2 and 3 are employed as Nurses in a private hospital and therefore are capable to maintain themselves. Ext.D1 acknowledgment card was produced by the respondent to establish that 2[nd] petitioner was working as a Nurse in Indiana Hospital at Mangalore. It is true that the address shown in Ext.D1, the acknowledgment card dated 05.08.2019 depicts the 2[nd] petitioner that she was working as a Nurse in Indiana Hospital, Mangalore, but it is not an authentic document to establish that the 2[nd] petitioner was working a Nurse there. Any cogent materials issued from the hospital to establish her employment as a Nurse there is not produced by the respondent. Therefore there is nothing on record to convince this Court satisfactorily that petitioners 2 and 3 were employed as Nurses at the relevant time when M.C was filed seeking maintenance allowance. They then are established as students of Nursing at Mangalore, having no income of their RP(FC) Nos.97 and 154 of 2021 26 own. Wherefrom the Family Court has found that petitioners 2 and 3 were employed then, is unknown. 30. As the 1[st] petitioner is concerned, she was claiming Rs.10,000/- as monthly maintenance allowance from the respondent. By producing certain medical records, the respondent has established that he is having acute lacunar infarct in his right thalamus and chronic lacunar infarcts in both basal ganglia. The respondent is proved to be a Salesman in a grocery shop. There is nothing on record to establish his monthly income as on date of filing of the application. In the above circumstances, it is found that Rs.5,000/- stands awarded as monthly maintenance allowance in favour of the 1[st] petitioner is a reasonable sum and therefore this Court is declined to interfere with that. In view of the above discussion, RP(FC) No.97/2021 is allowed in part and the order passed by Family Court in MC No.22/2019 to the extent it declined to award monthly maintenance allowance in favour of 2[nd] and 3[rd] petitioners is reversed. R.P.(FC) No.154/2021 fails and is dismissed and thereby the order in MC No.22/2019 to the extent it awards Rs.5,000/- as maintenance allowance in favour of the 1[st] RP(FC) Nos.97 and 154 of 2021 27 petitioner is maintained. Revision Petitioners 2 and 3 shall file an application under Section 20 of the Act before the Family Court and on such application being filed, the Family Court shall arrive at the quantum payable to each of them as monthly maintenance allowance after affording reasonable opportunity to both parties to adduce evidence and shall pass orders granting the same to them. Sd/- **MARY JOSEPH JUDGE** MJL