Suresh Kumar v. Anupama A.U

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 7[TH] DAY OF NOVEMBER 2023 / 16TH KARTHIKA, 1945 RPFC NO. 516 OF 2016** **AGAINST THE ORDER/JUDGMENT IN MC 520/2015 OF FAMILY COURT,** ## **NEDUMANGAD** ## **REVISION PETITIONER/S:** SURESH KUMAR AGED 34 YEARS, S/O.SADASIVAN NAIR, T.C.7/585, MELEKUZHIVILA PUTHENVEEDU, MRAE 32, MARUTHUMKUZHY, SASTHAMANGALAM P.O., VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM TALUK AND DISTRICT, PIN - 695 010. BY ADVS. SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN ## **RESPONDENT/S:** ANUPAMA A.U AGED 23 YEARS, D/O.ANITHAKUMARI, NMRA-11, TC 7/585 (6) NEDIYAVILA VEEDU, MANCHADIMOODU, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM TALUK, PIN - 695 013. BY ADV SRI.LATHEESH SEBASTIAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 07.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RPFC NO. 516 OF 2016 2 (Dated this the 7[th] day of November, 2023) ## **ORDER** The revision petition is filed assailing the order in M.C.No.520/2015 of the Family Court, Nedumangad directing the revision petitioner to pay monthly maintenance allowance @ Rs.5,000/- to the respondent from 30.12.2015. The revision petitioner was the respondent and the respondent was the petitioner before the Family Court. ## **Brief facts** 2. The respondent had filed an application under Section 125 of the Code of Criminal Procedure (in short, 'Code') against the revision petitioner, claiming maintenance allowance @ Rs.10,000/- per month. It was her case that she is the wife of the revision petitioner. Their marriage was solemnized on 23.01.2014. The revision petitioner deserted the respondent since 02.05.2015. The respondent is unemployed and has no means to sustain herself. The revision petitioner is a RPFC NO. 516 OF 2016 **==> picture [8 x 9] intentionally omitted <==** businessman and is earning monthly income of Rs.50,000/-. Hence, the application. 3. The revision petitioner filed a written objection refuting the allegations in the application. Although he admitted his marriage with the respondent, he contended that the respondent had suppressed her earlier marriage with another person. Moreover, she is living separately without any sufficient cause. The respondent is conducting tuitions and is earning sufficient income. The revision petitioner is only a driver and earning a monthly income of Rs.7,000/-. Hence, the application may be dismissed. 4. The respondent examined herself as PW1 and marked Ext.P1 in evidence. The revision petitioner examined himself as CPW1. 5. The Family Court after analysing the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay the respondent monthly maintenance RPFC NO. 516 OF 2016 4 allowance @ Rs.5,000/-. 6. It is assailing the said order that the present revision petition is filed. 7. Heard; Sri.Anilkumar, the learned Counsel appearing for the revision petitioner and Sri.Latheesh Sebastian, the learned Counsel appearing for the respondent. 8. The learned Counsel appearing for the revision petitioner argued that the Family Court has failed to take note of the fact that there is no marriage between the revision petitioner and the respondent because the respondent was already married to another person, which fact was suppressed at the time of the marriage between the parties and, therefore, the present marriage is void as it is hit by Section 5 of the Hindu Marriage Act. It is without appreciating this crucial aspect, the Family Court allowed the application. Hence, the impugned order is erroneous and liable to set aside. 9. The learned Counsel appearing for the respondent, RPFC NO. 516 OF 2016 5 on the contrary, vehemently countered the above submission and argued that the validity of the marriage cannot be questioned in an application under Section 125 of the Code, especially after the revision petitioner has admitted the solemnisation of his marriage with the respondent. He placed reliance on the decisions of the Honourable Supreme Court in **Pyla Mutyalamma @ Satyavathi vs. Pyla Suri Demudu and another** [2011 KHC 4708] and this Court in **Sivadasan P.K. vs. Jainy and another** [2021 (2) KHC 242] to bolster his submission that the validity of a marriage cannot be adjudicated in a proceeding under Section 125 of the Code. He prayed that the revision petition be dismissed. 10. Is there any illegality, impropriety or irregularity in the impugned order ? 11. The respondent's case in the application was that, she was married to the revision petitioner on 23.01.2014, that the revision petitioner deserted her since 02.05.2015 and that despite the revision petitioner having sufficient RPFC NO. 516 OF 2016 6 means, he has refused to maintain the respondent. 12. The revision petitioner's defence was that the respondent had suppressed her earlier marriage. Therefore, their marriage is a nullity and he is not liable to maintain her. It was only his defence that the respondent was conducting tuitions at home and is earning sufficient income, and that he was only a driver earning Rs.7,000/- per month. 13. Even though the revision petitioner contended that his marriage with the respondent is a nullity because it is hit by Section 5(i) of the Hindu Marriage Act, admittedly there is no decree passed by a competent court declaring the marriage invalid or void. 14. In **Pyla Mutyalamma** (supra) it is held that, if a husband wishes to impeach the validity of the marriage, he will have to institute a declarative suit in the civil court, and secure a decree, but the question can be decided in a proceeding under Section 125 of the Code. The above view has been reiterated by this Court in RPFC NO. 516 OF 2016 7 ## **Sivadasan** (supra). 15. In the case on hand, indisputably, the revision petitioner has not filed any petition to declare that his marriage with the respondent is a 'nullity'. The revision petitioner cannot aspire for this Court to go into Annexures A and B certificates and then hold that there is no valid marriage between him and the respondent. Furthermore, this Court has already dismissed the application to accept the Annexures A and B in evidence, as they are only photostat copies and no cogent explanation was put forth as to why the documents were not produced before the Family Court. 16. It is nigh well-settled, if there is a specific pleading in an application under Section 125 of the Code that there is a valid marriage between the couple, the same is sufficient to decide the application. The records reveal that the respondent had produced Ext.P1 photographs to prove her marriage with the revision petitioner. She also asserted that the marriage was RPFC NO. 516 OF 2016 8 solemnised on 23.01.2014, which fact is not disputed by the revision petitioner. 17. Viewed in the above background, this Court is of the view that the revision petitioner's defence regarding the invalidity of marriage is untenable. Consequentially I reject the said contention. 18. Now coming to the question of quantum of maintenance. The respondent's case is that the revision petitioner is a business man and is earning a monthly income of Rs.50,000/-. The revision petitioner denied the said assertion and contended that he is only a driver, earning Rs.7,000/- per month. 19. The revision petitioner has not produced any material to prove his income. Even though he alleged that the respondent was conducting home tuitions; he has failed to produce any material. 20. The Family Court, after appreciating the rival pleadings and materials on record, concluded that the respondent is entitled to monthly maintenance allowance RPFC NO. 516 OF 2016 9 @ Rs.5,000/-. 21 After bestowing my anxious consideration of the pleadings and materials on record, I do not find any illegality, impropriety or irregularity in the impugned order warranting interference by this Court by exercising its revisional powers under Section 19(4) of the Family Courts Act, 1984. The revision petition is meritless and is only liable to be dismissed. Resultantly, the revision petition is dismissed. Needless to mention that, this order will not preclude the revision petitioner from instituting a petition to declare that his marriage with the respondent is a nullity and, thereafter, pursuing his remedies under the Code. **==> picture [36 x 14] intentionally omitted <==** **C.S.DIAS JUDGE** rkc/07.11.23