Shamsudheen v. Rajeena and Anr.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945 ``` ``` RPFC NO. 310 OF 2014 ``` ``` AGAINST THE ORDER DATED 30.01.2014 IN MC 55/2010 OF FAMILY COURT, MALAPPURAM ``` ## `REVISION PETITIONER/RESPONDENT:` ``` SHAMSUDHEEN, AGED 34 YEARS, S/O. MUHAMMADKUTTY, EDATHOLI VEEDU, POST DEVALA, GOODALLUR, NEELAGIRI, TAMIL NADU. ``` ``` BY ADVS.SRI.K.B.ARUNKUMAR SRI.RANJIT BABU ``` ## `RESPONDENTS /PETITIONERS:` ``` 1RAJEENA, D/O. SAITHALAVI, AALIPARAMBIL VEEDU, POST UPPADA, NILAMBUR, MALAPPURAM DISTRICT, PIN 679 334. 2AASHIF ANSAR. (MINOR), S/O. SHAMSUDHEN AALIPARAMBIL VEEDU, POST UPPADA, NILAMBUR, MALAPPURAM DISTRICT. PIN-679 334. REPRESENTED BY HIS MOTHER, RAJEENA, THE 1ST RESPONDENT. 3MUHAMMAD NISAN, (MINOR), S/O. SHAMSUDHEN AALIPARAMBIL VEEDU, POST UPPADA, NILAMBUR, MALAPPURAM DISTRICT PIN-679 334. REPRESENTED BY HIS MOTHER, RAJEENA, THE 1ST RESPONDENT. ``` ``` BY ADV SRI.P.VENUGOPAL (1086/92) ``` ``` THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.310/2014 -:2:- Dated this the 23[rd] day of November,2023 ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order in M.C.No.55/2010 of the Family Court, Malappuram, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.2,200/- to the first respondent, Rs.2,500/- to the second respondent and Rs.5,000/- to the third respondent – his wife and two children – from the date of application. 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,1973 (‘Code’, for the sake of brevity), seeking monthly maintenance allowance from the R.P.(FC)No.310/2014 -:3:- revision petitioner. It was their case that the first respondent was the wife of the revision petitioner and the respondents 2 & 3 are the children born in the wedlock. Even though the revision petitioner was well employed as a Contractor and earning sufficient income, he has willfully refused to maintain the respondents. The respondents 2 & 3 are school going children. The third respondent is suffering from liver Cirrhosis and has to incur Rs.12,000/- per month for his treatment. The respondents do not have the means to maintain themselves. Hence, the application. 3. The revision petitioner filed a written objection, refuting the allegations in the application. It was his case that the first respondent was living separately without sufficient cause. He is only a Driver and earning Rs.6,500/- per month. He has no landed properties. The first respondent is employed as a Tailor and is earning Rs.350-400/- per day. He is willing to R.P.(FC)No.310/2014 -:4:- maintain the respondents by paying Rs.1,000/- per month. Hence, the application may be dismissed. 4. In the trial, the first respondent was examined as PW1 and Exts P1 to P1(g) were marked in evidence. The revision petitioner was examined as RW1. 5. The Family Court, after analysing the pleadings and materials placed on record, by the impugned order, partly allowed the application, by directing the revision petitioner to pay the respondents monthly maintenance allowance as already observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri. K.B. Arunkumar, the learned counsel appearing for the revision petitioner and Sri. P. Venugopal, the learned counsel appearing for the respondents. R.P.(FC)No.310/2014 -:5:- 8. Is there any illegality, impropriety or irregularity in the impugned order? 9. The revision petitioner admits his marriage with the first respondent and the paternity of the respondents 2 & 3. It is also not in dispute that the third respondent is suffering from liver Cirrhosis and is undergoing constant treatment. 10. The respondents' case is that although the revision petitioner was employed as a Contractor, he has refused to maintain them. The respondents do not have any income for their livelihood. 11. The revision petitioner’s defence was that the first respondent was living separately from him without sufficient cause, and that she is a Tailor by profession and earning Rs.350-400/- per day. 12. There is nothing on record to substantiate that the revision petitioner had made any effort to resume cohabitation with the first respondent. He has R.P.(FC)No.310/2014 -:6:- not filed any petition for a decree of restitution of conjugal rights. He has also not produced any material to prove that the first respondent was a Tailor and earning income. 13. 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. 14. 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. R.P.(FC)No.310/2014 -:7:- 15. 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. 16. 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. 17. On an analysis of the pleadings and materials R.P.(FC)No.310/2014 -:8:- on record, and taking note of the fact that the revision petitioner has admitted that the first respondent is his wife and the respondents 2 & 3 are his children and further that he was only 34 years at the time of filing the application, I am of the firm view that the revision petitioner is an able bodied person. At that point of time, the revision petitioner would have easily earned Rs.25,000/- per mensum by working as a daily labourer. Thus, I find the direction of the Family Court ordering the revision petitioner to pay the respondents a monthly maintenance of Rs.9,700/- to be reasonable and justifiable. 18. 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 R.P.(FC)No.310/2014 -:9:- 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 amount, while paying the balance amount due, as per the impugned order. Sd/- ## **C.S.DIAS,JUDGE** DST/23.11.23 //True copy// P.A. To Judge