Sunil v. Bindu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **MONDAY, THE 29TH DAY OF SEPTEMBER 2014/7TH ASWINA, 1936** **RPFC.No. 333 of 2014 ------------------------** **AGAINST THE ORDER IN MC 409/2008 of FAMILY COURT,THRISSUR DATED 19-12-2012** ## **REVISION PETITIONER/RESPONDENT:** **-------------------------------------------------------** **SUNIL AGED 46 YEARS S/O.ELAVANTRA SREEDHARAN, KANIPPAYUR DESOM, /VILLAGE THRISSUR DISTRICT.** **BY ADV. SRI.V.C.MADHAVANKUTTY** ## **RESPONDENT/PETITIONER:** **----------------------------------------** **BINDU, AGED 37 YEARS W/O.SUNIL ELAVANTRA SREEDHARAN D/O.MADAMBIKKATTIL DHARMAN, ANCHERY DESOM OLLUR VILLAGE, THISSUR DISTRICT-680 006.** **BY ADV. SRI.C.D.DILEEP** **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **K.HARILAL, J.** ------------------------------------------ ## R.P. (FC) No. 333 of 2014 -----------------------------------------Dated this the 29[th] day of September, 2014 ## **O R D E R** The revision petitioner is the respondent in M.C. No.409/2008 on the files of Family Court, Thrissur. The above M.C. was filed by the respondent herein under section 125(1) of the Code of Criminal Procedure, seeking maintenance allowance from the revision petitioner. 2. According to the respondent she is the legally wedded wife of the revision petitioner and the revision petitioner is liable to pay maintenance allowance to her, but the revision petitioner has been neglecting to maintain her and refused to pay maintenance allowance. She is living separately since 1.8.2007. Thereafter, the revision petitioner has not paid any amount towards her maintenance. She has no job or any source of income to account her livelihood. Now, she is depending upon her **-2-** ## **R.P. (FC) No. 333 of 2014** parents whereas the revision petitioner is working in a shop at Ernakulam for wages and he is earning a monthly income of Rs.20,000/- per month. She claimed maintenance allowance at the rate of Rs.3,000/- per month. 3. The revision petitioner filed a counter statement admitting the marital status of the respondent, but, he contended that there is no sufficient reason to live separately and claim maintenance allowance. He denied the allegation that he has illicit connection with another lady. According to him, the respondent left the matrimonial home on her own volition. He denied the claim of the respondent that he is earning Rs.20,000/- per month. 4. After considering the evidence on record, the Court below directed the revision petitioner to pay maintenance allowance at the rate of Rs.2,000/- per month. The legality and propriety of the said direction is under challenge in this revision petition. ## **R.P. (FC) No. 333 of 2014** **-3-** 5. The learned counsel for the revision petitioner drew my attention to paragraphs 15 to 21 of the impugned order under challenge and contended that the Court below itself found that the respondent failed to prove the alleged cruelty and if so, the respondent is not entitled to get any amount from the revision petitioner. It is also contended that Exhibits B3 and B6 evidently prove that she is employed, so the court below ought to have found that the respondent was able to maintain herself and the revision petitioner was not liable to pay maintenance allowance to the respondent. The learned counsel further contended that the burden is on the respondent to prove that there are sufficient grounds to live separately and claim maintenance allowance. But, she has not discharged the burden of proof. 6. _Per contra_ , the learned counsel for the respondent advanced arguments to justify the findings whereby the court below rejected Exhibits B3 and B6. The learned ## **R.P. (FC) No. 333 of 2014** **-4-** counsel for the respondent further contended that cruelty is not a matter to be proved to get maintenance allowance from the husband and on that premises the Court below can be justified in finding that even though the respondent has failed to prove the allegation of cruelty, she is entitled to get maintenance allowance from the revision petitioner. 7. In view of the rival submissions raised at the Bar, the questions to be considered are: - i. Whether the respondent is entitled to get maintenance allowance from the revision petitioner? - ii. Whether the court below can be justified in directing the revision petitioner to pay maintenance allowance at the rate of Rs.2,000/- per month? 8. The marital status of the parties are not disputed. It is also admitted that from 2007 onwards the respondent ## **R.P. (FC) No. 333 of 2014** **-5-** is residing separately. According to the revision petitioner there is no sufficient ground to reside separately and claim maintenance allowance. The burden is on the respondent to prove that there are sufficient grounds to live separately and claim maintenance allowance. But she has not discharged the burden of proof. 9. _Prima facie_ , I am unable to accept the argument advanced by the learned counsel for the revision petitioner in view of the statutory mandate under section 125 of the Code of Criminal Procedure. The statutory mandate under section 125(1) of the Code of Criminal Procedure is that if any person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, is liable to pay maintenance allowance to her. But, as per section 125(4) of the Code of Criminal Procedure no wife shall be entitled to receive maintenance allowance from her husband if she is living in adultery or without any sufficient reason ## **R.P. (FC) No. 333 of 2014** **-6-** she refuses to live with her husband or if they are living separately by mutual consent. 10. On a combined reading of Sections 125(1) and 125(4) it can be seen that section 125(4) is an exception under section 125(1) of the Code of Criminal Procedure. Put it differently, if the wife is living separately in adultery or without any sufficient reason she refuses to live with her husband, the husband is not liable to pay maintenance allowance to the wife. If section 125(4) is an exception to section 125(1) of the Code of Criminal Procedure, the burden of proof can be covered by section 105 of the Indian Evidence Act. 11. According to section 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing the case within the general exceptions or within the special exception or proviso, is on the person who claims the benefit. When applying the above principle in the **-7-** ## **R.P. (FC) No. 333 of 2014** instant case the respondent contended that the revision petitioner has been neglecting her and refused to pay maintenance allowance since 2007. The revision petitioner has no case that he has paid any amount towards maintenance after 2007. If that be so, the burden is on the revision petitioner to show that he is not liable to pay maintenance allowance under the exemption under section 125(4) of the Code of Criminal Procedure. The respondent has discharged her initial burden by adducing evidence to the effect that no amount has been paid towards maintenance allowance since 2007. If that be so, it was for the revision petitioner to rebut the said contention by adducing circumstances which would prove the exception under section 125(4) of the Code of Criminal Procedure. In the absence of any evidence, I cannot find fault with the court below in finding that the revision petitioner is liable to pay maintenance allowance to the respondent. ## **R.P. (FC) No. 333 of 2014** **-8-** 12. Coming to the next question, it is the case of the revision petitioner that the respondent is working in a private Company and the same is evidenced by Exhibits B3 and B6, but the court below miserably failed to appreciate Exhibits B3 and B6 in its correct perspective. Going by the Order it can be seen that Ext.B3 is the postal acknowledge and Ext.B6 is the postal receipt. Exhibits B3 and B6 were produced to show that the respondent is working in a private Company. As rightly found by the court below, mere production of an acknowledgment and postal receipt which would show that the letter sent to the respondent in the address of the private Company was received by the respondent, it cannot be held that she is employed in the said Company and she is earning sufficiently so as to maintain herself. Therefore, I find that the evidence adduced by the petitioner was not sufficient to arrive at a finding that the respondent was employed as alleged by him. ## **R.P. (FC) No. 333 of 2014** **-9-** 13. Going by the counter statement filed by the revision petitioner he has no case that the respondent is employed in a private company shown in Exhibits B3 and B6. That shows that even at the time of filing the counter statement the revision petitioner has no case that the respondent was employed as alleged by him. 14. In this context the decision in **Chaturbhuj v. Sita Bai - 2008(1) KLT 41 (SC)** assumes significance. In the above decision it was held that the efforts made by the wife after desertion to survive somehow would not take away the right to get maintenance. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In view of the above decision, even if she is employed in a private Company after desertion that cannot be taken into account for considering the question whether the respondent is able enough to maintain herself. ## **R.P. (FC) No. 333 of 2014** **-10-** 15. The learned counsel for the revision petitioner further contended that the quantum of maintenance fixed by the court below is excessive and disproportionate with his income. The revision petitioner himself admitted that he is working as a salesman in a furniture shop at Ernakulam. Though he contended that he is receiving Rs.4,500/- only, no evidence has been adduced to show that he is getting Rs.4,500/- only as income. 'Income' is a fact exclusively within the knowledge of the person who receives the same. If that be so, in the absence of any evidence to prove his actual income, an adverse inference can be drawn against the revision petitioner in the matter of actual salary which is being received by him from the shop. 16. Having regard to the status of the parties, standard of living, living cost and the income of the revision petitioner, I find that the quantum of maintenance allowance determined by the court below is just and proper. ## **R.P. (FC) No. 333 of 2014** **-11-** There is no reason to interfere with the above finding. This Revision Petition (Family Court) is devoid of any merit and is dismissed accordingly. Sd/K. HARILAL, JUDGE //True Copy// P.A. to Judge jjj