Sujeesh Kumar v. Sharanya T.P. and K.Vaiga (minor)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944 RPFC NO. 273 OF 2022 ``` ## **`AGAINST THE JUDGMENT IN MC.NO.341/2019 OF FAMILY COURT,KOZHIKODE`** ## **`REVISION PETITIONER/PETITIONER:`** ``` SUJEESH KUMAR AGED 42 YEARS, S/O.SURENDRAN KUTTIKKATTIL HOUSE, P.O. KOVOOR, KOZHIKODE, PIN - 673008 BY ADVS. R.SUDHISH M.MANJU ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHARANYA.T.P., AGED 34 YEARS, D/O.SUBRAHMANYAN C/O.RAGHUNATHAN, POKKALATH PARAMBU, GOVINDAPURAM, KOZHIKODE, PIN - 673016 2K.VAIGA (MINOR) AGED 10 YEARS D/O.SUJEESH KUMAR, REPRESENTED BY MOTHER SHARANYA.T.P. (1ST RESPONDENT), C/O.RAGHUNATHAN, POKKALATH PARAMBU, GOVINDAPURAM, KOZHIKODE, PIN - 673016 BY ADVS. THOMAS T. VARGHESE PHILIP T.VARGHESE ACHU SUBHA ABRAHAM(K/001758/1999) V.T.LITHA(K/278/2006) K.R.MONISHA(K/915/2013) ARJUN RAJA P.C.(K/843/2019) SREENATH VIJAYARAGHAVAN(K/001097/2017) ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RPFC NO. 273 OF 2022 2 ``` ## ORDER This revision petition has been filed under Section 19(4) of the Family Courts Act, challenging order in M.C.No.341/2019, dated 13.5.2022, on the file of the Family Court, Kozhikode and the revision petitioner is the respondent in the above M.C. 2. Respondents herein are wife and minor child, aged 7 years as on 2019. The specific case put up by the respondents before the Family Court was that the respondents, being wife and minor child of the revision petitioner, did not have any means of maintenance and the revision petitioner had been doing contract work of tiles and marbles and he had been earning Rs.30,000/- to 40,000/- per month. On the said premise, the respondents claimed for maintenance at the rate of Rs.10,000/- and Rs.7,000/- respectively. 3. The revision petitioner filed objection, stating that the first respondent had been living separately from the revision petitioner, without any sufficient reason. Further, his job and income by doing contract work of marble and tiles was denied, while contending that he had been doing ``` RPFC NO. 273 OF 2022 3 ``` the job of a security and earning only Rs.5,000/- per month. There is a vague allegation in the objection that the revision petitioner is a person having health issues and no job. 4. The Family Court recorded evidence in O.P.No.1248/2019 and M.C.No.341/2019 and as per common judgment, dated 13.5.2022, the Family Court granted Rs.5,000/- to the first petitioner and Rs.4,000/- to the second petitioner, towards maintenance allowance from the date of petition. Now, the revision petitioner assails the said order on the ground that the revision petitioner has been suffering from ailments and therefore, he could not earn the said sum. It is also submitted that he has been doing the job of a security and therefore, the amount ordered by the Family Court is exorbitant. 5. When the learned counsel for the revision petitioner was asked to justify evidence to support the vague plea of illness or infirmities of the revision petitioner, the learned counsel failed to point out even weak piece of medical evidence in this regard. In the affidavit also, apart from reiterating reasons to deny maintenance, as stated in the objection, nothing stated in a convincing manner to deny maintenance to the respondents. ``` RPFC NO. 273 OF 2022 4 ``` 6. The Family Court considered the evidence available. It was held that no scrap of paper had been produced before the Family Court from the side of the revision petitioner to prove that he was suffering from any kind of pulmonary disease. It is also stated that, if the revision petitioner had been working as a security personnel, there would be sufficient documents for the same. The same also not produced. 7. In this case, the Family Court found that the revision petitioner would get Rs.1,000/- per day, for a period of 20 days in a month and thus the income would come to Rs.20,000/-. Accordingly, Rs.5,000/- and Rs.4,000/- were granted as maintenance. 8. As regards to the legal position, in the matter of grant of allowance of maintenance under Section 125 of Cr.P.C, the law is well settled. 9. As early in [(1978) 4 SCC 70], Captain Ramesh Chander Kaushal v. Mrs.Veena Kaushal & Ors. . the Apex Court held that the same falls within the constitutional sweep of Article 15(3) reinforcing Article 39 of the Constitution of India. 10. In [(1997) 7 SCC 7], Jabsir Kaur Sehgal v. District Judge ``` RPFC NO. 273 OF 2022 5 ``` ## Dehradun & Ors. the Apex Court held as under: “The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and of those he is obliged under the law and statutory but involuntary payments or deductions. The amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate.” 11. In [(2005) 3 SCC 636], Chaturbhuj v. Sita Bai , the Apex Court held that Section 125 provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. 12. In [(2021) 2 SCC 324], Rajnesh v. Neha & anr., the Apex Court had dealt with the relevant factors for determination of maintenance and held that, if wife is earning, it cannot operate as a bar from being awarded maintenance by husband. In a marriage of long duration, where parties have endured relationship for several years, it would be a relevant factor to be taken into consideration. On termination of relationship, if wife is educated and professionally qualified, but had to give up her employment ``` RPFC NO. 273 OF 2022 6 ``` opportunities to look after needs of family being primary caregiver to minor children and elder members of family, this factor would be required to be given due importance. With advancement of age, it would be difficult for a dependent wife to get an easy entry into workforce after a break of several years. Living expenses of child would include expenses for food, clothing, residence, medical expenses, education of children. Serious disability or ill health of a spouse, child/children from marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. 13. The legal position is not in dispute that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate. Living expenses of child would include expenses for food, clothing, residence, medical expenses, education of children. Serious disability or ill health of a spouse, child/children from marriage/dependent relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying ``` RPFC NO. 273 OF 2022 7 ``` maintenance. It is further settled in law that merely because the wife is earning money, it could not be a ground to reject the claim for maintenance. The rationale is that the amount she would earn, if not sufficient to maintain the wife, then also the husband is bound to maintain his wife and to give her sufficient sum for her sustenance. 14. In this matter, admittedly, the revision petitioner is aged 39 years as on 2019 and no substantive evidence adduced before the Family Court to substantiate that he had any ailments of serious nature to restrain his earning capacity. A person, who is able bodied and not otherwise incapacitated, if opts to do some work in a private sector for a lesser amount, then, the said amount shall not be the base on which claim of maintenance can be considered. Such cases, the contention and the documents, if any, in this regard, shall be considered as clever attempt on the part of the revision petitioner to deny maintenance, by showing lesser income. Here, as I have already pointed out, no documents produced to show any infirmities or any incapacity of the revision petitioner to earn sufficient income, so as to maintain the wife and child. It is noticed that the Family Court ordered very reasonable amount of Rs.5,000/- and Rs.4,000/- per ``` RPFC NO. 273 OF 2022 8 ``` month, as monthly maintenance. Taking note of all these facts, the same appears to be very reasonable. Therefore, the order impugned does not require any interference and the same is confirmed. Accordingly, this revision petition is dismissed. Sd/A. BADHARUDEEN JUDGE Bb ``` RPFC NO. 273 OF 2022 9 ``` ## **`APPENDIX OF RPFC 273/2022`** |`PETITIONER’S`|`ANNEXURES`| |---|---| |`ANNEXURE A1`|`COPY OF THE MEDICAL REPORT PERTAINING`| ||`TREATMENT FOR PULMONARY DISEASE ISSUED BY`| ||`DR. P. RAJAN DATED 31.8.2015`| |`ANNEXURE A2`|`COPY OF THE MEDICAL REPORT PERTAINING`| ||`TREATMENT FOR PULMONARY DISEASE ISSUED BY`| ||`DR. P. RAJAN DATED 30.10.2017`| |`ANNEXURE A3`|`COPY OF THE MEDICAL REPORTS PERTAINING TO`| ||`THE TREATMENT HISTORY OF THE PETITIONER`| ||`ISSUED FROM THE GOVERNMENT MEDICAL`| ||`COLLEGE, KOZHIKODE`| |`ANNEXURE A4`|`COPY OF THE SALARY SLIP ISSUED BY THE`| ||`PETITIONER'S EMPLOYER, M/S CLASSIC`| ||`PROTECTION FORCE PRIVATE LIMITED FOR THE`| ||`MONTH OF JUNE 2022`| |`RESPONDENTS’`<br>`ANNEXURES`|<br>`NIL`| //TRUE COPY// PA TO JUDGE