Smitha P.S and Achu (Minor) v. Jinesh Kumar T.D.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **TUESDAY, THE 14[TH] DAY OF JUNE 2022/24TH JYAISHTA, 1944** **R.P.(F.C.) NO.603 OF 2016** **(AGAINST THE ORDER DATED 30.08.2016 IN MC 107/2015** **OF FAMILY COURT, MUVATTUPUZHA)** ## **REVISION PETITIONERS/PETITIONERS:** 1 SMITHA P.S, AGED 36 YEARS, D/O.SEKHARAN, IKKARAKUDY HOUSE, THRIKKALATHOOR P.O, MULAVOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM. 2 ACHU (MINOR), AGED 4 YEARS, D/O.JINESH KUMAR, RESIDING AT IKKARAKUDY HOUSE, THRIKKALATHOOR P.O, MULAVOOR, REPRESENTED BY HER MOTHER AND NATURAL GAURDIAN SMITHA P.S, AGED 36 YEARS, D/O.SEKHARAN, IKKARAKUDY HOUSE, THRIKKALATHOOR P.O, MULAVOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM. BY ADVS. SRI.GEO PAUL SRI.S.ASHOK KUMAR. SRI.LENIN P. SUKUMARAN KUM.LAYA MARY JOSEPH SRI.C.R.PRAMOD SRI.RADHIKA RAJASEKHARAN P. SRI.SANU MATHEW SRI.K.S.SREENATH SRI.SOHAIL MOHAMMED ANSARY ## **RESPONDENT/RESPONDENT IN M.C.No.107/2015:** JINESH KUMAR T.D., AGED 44 YEARS, S/O.DAMODARAN, THURUTHIKKATTU HOUSE, POONJAR, THEKKEKKARA P.O, MEENACHIL TALUK, KOTTAYAM, PIN 686 582. BY ADV SRI.C.S.SUNIL THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _RP(F.C.)No.603 of 2016_ 2 ## **ORDER** _**(** Dated: 14[th] June, 2022)_ The 1[st] petitioner/wife in M.C.No.107 of 2015 on the file of the Family Court, Muvattupuzha who was denied maintenance by the Family Court has filed this petition. 2. The respondent was the 1[st] respondent before the Family Court. The marriage between the 1[st] petitioner and the respondent was solemnised on 27.03.2006 at the residence of the 1[st] petitioner at Thrikkalathoor, Muvattupuzha. A daughter born in the wedlock on 29.05.2011. After the marriage, the petitioner and the respondent resided together in the house of the respondent. From the very beginning of the marital life, the respondent ill-treated the petitioner. Due to continuous mental torture, the 1[st] child of the petitioner died immediately after birth. Though the disputes between the petitioner and the _RP(F.C.)No.603 of 2016_ 3 respondent were settled amicably, the respondent again started torturing, hence on 08.02.2015, the petitioner's parents brought back her from the matrimonial home. The petitioner and the respondent are living separately and the respondent is not maintaining the petitioner and the child, who is residing with the petitioner, hence she claimed maintenance at the rate of Rs.5,000/- and Rs.3,000/- respectively by filing M.C before the Family Court, Muvattupuzha. She has no other income to maintain herself and the child and the respondent being a goldsmith is earning Rs.20,000/- per month. 3. The respondent filed objection contending that the 1[st] petitioner has left the matrimonial home on 08.02.2015 with the child accompanying her parents, on her own volition. Thereafter, the petitioner has not returned back. The respondent is not working as a goldsmith now and the amount claimed is exorbitant. He is now working as an assistant of an electrician, and _RP(F.C.)No.603 of 2016_ 4 earning a meager income. The 1[st] petitioner is a qualified computer operator and she is earning. The respondent is ready to maintain the petitioners, if they live with the respondent in his residence. 4. The evidence consisted of oral evidence of PWs 1 to 3 and RW1. On the side of the petitioners Exts.A1 and A2 series were marked and Exts.B1 to B3 were marked on the respondent's side. The Family Court tried this case along with O.P.No.291 of 2015 and passed an order directing the respondent to pay Rs.3,000/- each per month to the 2[nd] petitioner/child alone and denied maintenance to the 1[st] petitioner/wife. Aggrieved by the denial of maintenance to the 1[st] petitioner, this revision is filed. 5. Since 08.02.2015, the petitioner and the respondent are residing separately. It is true that no specific reason is stated in the petition for separate residence. The contention of the respondent/husband is that, without justifiable reason, the 1[st] petitioner has _RP(F.C.)No.603 of 2016_ 5 left him and living separately with the child. Though a specific question was asked in the cross examination of PW1 that she is living separately without any justifiable reason she denied the same. PW2 is the mother of the 1[st] petitioner. When she was examined, she submitted that the 1[st] child died immediately after delivery due to the harassment meted out by the respondent and her in-laws. The respondent was examined as RW1. His specific contention is that, he knows the work of making gold ornaments. He denied the fact that he is well versed in wiring jobs, but admitted that he used to go along with electricians. His further case is that, since he has got the problem with 'hernia' is not able to go for jobs. When PW1 was examined, she submitted that the respondent used to make quarrel with her for various reasons and she was harassed mentally also. In cross examination, she deposed that on 08.02.2015, she has left the matrimonial home and before that she has filed a complaint before the _RP(F.C.)No.603 of 2016_ 6 Erattupetta Police regarding the ill-treatment. In a mediation conducted at the police station, she again started to live with the respondent. The main allegation in the police complaint is that, the mother of the respondent has assaulted her. 6. Ext.B1 is a piece of paper signed by the petitioner's father, wherein it is stated that, 'he is taking his daughter along with child'. The Family Court heavily relied on Ext.B1, to come to the conclusion that it is on her own volition that she has left the home. Ext.B1 will only show that the 1[st] petitioner was taken by her father as on her request on the previous day. It has also come out in evidence that a complaint was filed before the police station alleging assault from the mother-in-law and harassment from her husband. From the complaint as well as from the accompanying circumstances, it can be seen that, the 1[st] petitioner has left the matrimonial home on 08.02.2015 for justifiable reasons. The finding of the Family Court _RP(F.C.)No.603 of 2016_ 7 that, it is on her own volition she has left the home is improper. 7. The counsel for the petitioner/wife relied on the decision of the Apex Court in _**Sunita Kachwaha and Others v. Anil Kachwaha [2014 (16) SCC 715]**_ , in which the Apex Court in paragraph 8 has held, as follows: _“8. The proceeding under S.125 Cr.P.C is summary in nature. In a proceeding under S.125 Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant-wife and the respondent and observing that the appellant-wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of appellant-wife and the factual findings, as recorded by the Family Court”._ In view of the settled position of law, I am of the _RP(F.C.)No.603 of 2016_ 8 opinion that the matter requires re-consideration by the Family Court. In the result, the appeal is allowed and the judgment to the extent denies maintenance of the 1[st] petitioner is set aside and the matter is remitted to the Family Court for fresh trial and decision _de-novo_ . The Family Court shall give opportunity to both the parties to adduce further evidence if any and enter into a finding, whether the 1[st] petitioner is entitled to maintenance. The Family Court shall dispose of the M.C., as directed above at any rate, within a period of six months from the date of receipt of the certified copy of the judgment. Needless to say that, the Family Court shall dispose of the case untrammelled by any of the observations made in this judgment. R.P.(F.C.) is allowed. _Sd/-_ BASANT BALAJI, JUDGE ss