S.V. Hari v. Shreya (Minor) through mother, Ansy, and State of Kerala

1 R.P (FC) No.298 of 2014 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA, 1945 RPFC NO. 298 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT MC 464/2011 OF THE FAMILY COURT, NEDUMANGAD ``` ## **`REVISION PETITIONER/S:`** ``` S.V. HARI, S/O.SOMARAJ, AGED 33 YEARS, HARI NIVAS, MUKKAMPALAVILA VEEDU, VAZHUTHOOR, NEYYATTINKARA, THIRUVANANTHAPURAM ``` ``` BY ADVS. SRI.V.JAYAPRADEEP SRI.ABE RAJAN SRI.SHANE WILFRED MORRIS ``` ## **`RESPONDENT/S:`** ``` 1.SHREYA,(MINOR), D/O.HARI, AGED 4 YEARS, AA NIVAS, THEKKUMKARA KARIPOOR VILLAGE, NEDUMANGAD TALUK THIRUVANANTHAPURAM, (REPRESENTED BY MOTHER SECOND RESPONDENT) ``` ``` 2. ANSY, D/O.LALITHA, AGED 25 YEARS, AA NIVAS, THEKKUMKARA KARIPOOR VILLAGE, NEDUMANGAD TALUK THIRUVANANTHAPURAM ``` ``` 3.STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV SRI.J.JAYAKUMAR ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P (FC) No.298 of 2014 ## **C.S DIAS,J.** **--------------------------R.P (FC) No.298 of 2014 ----------------------------Dated this the 18[th] day of December, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the order in M.C No.464/2011 of the Family Court, Nedumangad, ordering the revision petitioner to pay the respondents - his daughter and wife - monthly maintenance allowance @ Rs.3,000/- and Rs.4,000/- respectively, The revision petitioner was the respondent and the respondents 1 and 2 were the petitioners before the Family Court. ## **Brief facts** 2. The respondents 1 and 2 had filed the application under Sec.125 of the Code of Criminal 3 R.P (FC) No.298 of 2014 Procedure (in short, “Code”), against the revision petitioner, seeking monthly maintenance allowance from him. It was their case that the second respondent is the wife of the revision petitioner. The first respondent is the child born in their wedlock. The revision petitioner has refused to maintain the respondents 1 and 2 from 19.6.2010 onwards. The respondents 1 and 2 do not have any source of income and they are unable to maintain themselves. The revision petitioner is working in Railways and is drawing a monthly salary of Rs.20,000/-. The respondents 1 and 2 require Rs.10,000/- for their monthly maintenance allowance. Hence, the application. 4 R.P (FC) No.298 of 2014 3. The revision petitioner filed a written objection denying the allegations in the application. He contended that the second respondent had filed MC No.33/2010 before the Judicial First Class Magistrate Court, Nedumangad, and the application was allowed by ordering the revision petitioner to pay the second respondent Rs.1500/- per month. It is the second respondent who deserted the revision petitioner. The amount of maintenance claimed by the respondents 1 and 2 is excessive. Hence, the application may be dismissed. 4. In the trial, the second respondent was examined as PW1 and Exts P1 to P3 were marked through her in evidence. The revision petitioner was examined as CPW1. 5 R.P (FC) No.298 of 2014 5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application as observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri.V.Jayapradeep, the learned counsel appearing for the revision petitioner, Sri.J.Jayakumar, the learned counsel appearing for the respondents 1 and 2 and the learned Public Prosecutor appearing for the third respondent/State – a formal party. 8. The learned counsel appearing for the revision petitioner argued that in view of the subsequent developments that have occurred, the revision petitioner is no longer liable to maintain the respondents. The second respondent has already remarried and she has 6 R.P (FC) No.298 of 2014 secured an employment in the University. The second respondent has already sent a letter to the Family Court stating that she does not want any amount as maintenance from the revision petitioner. The revision petitioner has produced copies of the said documents in the revision petition and prays that the impugned order may be cancelled as against the second respondent. 9. The revision petitioner admits his marriage with the second respondent and the paternity of the first respondent. 10. It is on record that the revision petitioner was working in the Railways as Sweeper cum Porter-II, in the Kochuveli railway station. As per Ext P3 salary certificate, the revision petitioner was drawing a gross 7 R.P (FC) No.298 of 2014 salary of Rs.18,000/- and after deduction, he was drawing a net salary of Rs.6,137/-. 11. The Family Court, after analysing the pleadings and materials on record, deemed it proper to direct the revision petitioner to pay the respondents 1 and 2 monthly maintenance allowance @ Rs.7,000/-. 12. The learned counsel for the revision petitioner argued that it was illegal and irrational for the Family Court to have ordered the revision petitioner to pay the respondents Rs.7,000/- per month, when he was only drawing Rs.6,137/- per month. 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 8 R.P (FC) No.298 of 2014 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. 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 9 R.P (FC) No.298 of 2014 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. 16. It is also well settled 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. A reading of Ext P3 salary certificate would show that the revision petitioner was drawing a gross salary of Rs.18,000/-. However, an amount of Rs.11,863/- was deducted from the salary towards FA, GIS, LIC, SSS, NPS-TIER, Loan and CMTD. Accordingly, the revision petitioner was having a net salary of Rs.6,137/- per month. 10 R.P (FC) No.298 of 2014 18. On an evaluation of the above deduction, it can be gathered that most of the deductions are towards the life earnings of the revision petitioner. Merely because the revision petitioner is saving money, as per the above schemes, the same cannot be treated as a ground to deny the respondents from living in the same status and standard of living as that of the revision petitioner. Therefore, I am of the view that, the impugned order directing the revision petitioner to pay the respondents 1 and 2 monthly maintenance allowance @ Rs.7,000/is only reasonable and justifiable. Nonetheless, if the revision petitioner has a case that the second respondent has remarried and is presently employed, he would be at liberty to move the Family Court for 11 R.P (FC) No.298 of 2014 cancellation/modification of the impugned order under Sec.127 of the Code. 19. 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 meritless and is without any substance, and is only liable to be dismissed. Resultantly, the revision petition is dismissed, without prejudice to the revision petitioner to move the Family Court for cancellation/modification of the impugned order as against the second respondent. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders of 12 R.P (FC) No.298 of 2014 this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order. The Registry is directed to forward a copy of this order to the Family Court for compliance. SD/- sks/18.12.2023 **C.S.DIAS, JUDGE** 13 R.P (FC) No.298 of 2014 ## **`APPENDIX OF RPFC 298/2014`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A1 – THE COPY OF THE SALARY CERTIFICATE OF THE REVISION PETITIONER DATED 25.7.2013 ``` ``` ANNEXURE A2 – THE COPY OF THE ORDER DATED 17.5.2014 IN MC 33/2010 OF THE JFMC, NEDUMANGAD ``` ``` ANNEXURE A3- THE COPY OF THE RECEIPT DATED 4.7.14 IN EP 27/14 IN OP 1058/2010 OF THE FAMILY COURT, NEDUMANGAD ``` ``` ANNEDURE A4- CERTIFIED COPY OF THE ORDER IN MC 464/2011 DATED 13.6.2014 OF THE FAMILY COURT, NEDUMANGAD ``` ``` Annexure A5TRUE COPY OF THE JUDGEMENT IN CC.380/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA DATED.18.9.2021 ``` ``` Annexure A6TRUE COPY OF THE REGISTERED LETTER DATED.11.2.2019 ```