Vijayakumar v. Remadevi and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 21[ST] DAY OF NOVEMBER 2023 / 30TH KARTHIKA, 1945 ``` ``` RPFC NO. 19 OF 2019 ``` ``` AGAINST THE ORDER DATED 09.03.2017 IN MC 427/2010 OF FAMILY COURT, KOTTARAKKARA ``` ## `REVISION PETITIONER/RESPONDENT:` ``` VIJAYAKUMAR, AGED 54 YEARS, S/O. KUMARAN, PALACE BHAVANAM (VIJAYA BHAVANAM) PANAYIL JUNCTION, KOTTATHALA, MYLOM, KOTTARAKARA ``` ``` BY ADV SYAM J SAM ``` ## `RESPONDENTS/PETITIONERS:` ``` 1REMADEVI, AGED 44 YEARS, KIZHAKKEMUZHANGODY PUTHEN VEEDU, PALLICKAL, MYLOM, KOTTARAKARA 691012 2VISHNU DEV V.R., AGED 22 YEARS S/O. RAMDEVI, KIZHAKKEMUZHANGODY PUTHEN VEEDU, PALLICKAL,MYLOM, KOTTARAKARA-691012 3VEENA DEVI, AGED 19 YEARS, RAMDEVI, KIZHAKKEMUZHANGODY PUTHEN VEEDU, PALLICKAL, MYLOM, KOTTARAKARA-691012 ``` ``` THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.19/2019 -:2:- Dated this the 21[st] day of November,2023 ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order in M.C.No.427/2010 of the Family Court, Kottarakkara, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.2,500/- each to the respondents – his wife and children – from the date of petition (14.12.2010). The revision petitioner was the respondent and the respondents were the petitioners before the Family Court. ## **Brief facts:** 2. The respondents had filed the application under Section 125(1) of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), asserting that the first respondent is the wife of the revision petitioner and their marriage was solemnized on 05.01.1995 as per the Hindu Religious rites and R.P.(FC)No.19/2019 -:3:- customs of their community. The respondents 2 & 3 are the children born in their wedlock on 11.12.1996 & 26.08.1999, respectively. The revision petitioner has willfully refused to maintain the respondents from 28.10.1999. The revision petitioner is employed in the Gulf and earning a monthly income equivalent to Rs.50,000/-. The respondents do not have the means to sustain themselves and require a monthly maintenance of Rs.4,000/- each. Hence, the application. 3. Although the revision petitioner had entered appearance and filed a written objection, he failed to contest the proceedings. The Family Court set him ex-parte and the first respondent had filed the chief affidavit and marked Exts A1 & A2 – the birth certificates of the respondents 2 & 3. 4. The Family Court, after appreciating the uncontroverted assertions in the claim petition and in the affidavit, corroborated by Exts A1 & A2 – birth certificates, partly allowed the application, by directing R.P.(FC)No.19/2019 -:4:- the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.2,500/- each from the date of petition. 5. Aggrieved by the said order; the revision petition is filed. 6. Heard; Sri. Syam J. Sam, the learned counsel appearing for the revision petitioner on admission. 7. Although the revision petition was filed as early as on 10.02.2018, since there was a delay of 562 days in filing the revision petition, this Court ordered notice to the respondents. Subsequently, this Court condoned the delay in filing the revision petition and posted the case for admission. 8. When the revision petition came up for consideration on 15.11.2023, this Court had called for a report from the Family Court to ascertain as to whether any execution application is pending consideration. The learned Judge of the Family Court, by communication dated 16.11.2023, has informed this R.P.(FC)No.19/2019 -:5:- Court that an application to execute the impugned order is pending consideration as Crl.M.P. No.88/2019 and a Non-Bailable warrant has been issued against the revision petitioner, since he has not paid the arrears of maintenance due as per the impugned order. 9. The learned counsel appearing for the revision petitioner argued that there is no valid marriage between the revision petitioner and the first respondent and the paternity of the respondents 2 & 3 is disputed. He also contended that, during the pendency of the revision petition, the respondents 2 & 3 have attained majority. Therefore, the revision petitioner is no longer liable to maintain the respondents 2 & 3. Notwithstanding the above contentions, the respondents have put the order to execution and the revision petitioner is facing coercive proceedings. Therefore, the impugned order may be set aside and the revision petitioner may be given an opportunity to contest the case on merits. R.P.(FC)No.19/2019 -:6:- 10. Is there any illegality, impropriety or irregularity in the impugned order? 11. A reading of the impugned order shows that the respondents have specifically contended that the first respondent is the wife of the revision petitioner and the respondents 2 & 3 are the children born in the wedlock, which assertion stands corroborated by Exts A1 & A2 – birth certificates. 12. Indisputably, the revision petitioner had entered appearance and had filed his written objection. However, as he failed to contest the matter he was set ex-parte. The first respondent filed her proof affidavit and marked Exts A1 & A2 in evidence and, thereafter, the Family Court passed the impugned order. 13. It is not discernible from the materials placed on record that the revision petitioner had even filed an application to set aside the ex-parte order. Instead, he filed the instant revision petition with an inordinate delay of 562 days and without an application to stay R.P.(FC)No.19/2019 -:7:- the execution of the order. It is nearly after seven years after the order is passed, the revision petitioner is pressing for an admission and to stay the execution of the order. 14. 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 recourse to dependant wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. 15. 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. 16. In **Bhuwan Mohan Singh v. Meena & Ors.** R.P.(FC)No.19/2019 -:8:- [(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 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, husband was required to earn money even by physical labour, if he is able bodied and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. 17. The revision petitioner’s main defence in the written objection is that there is no valid marriage between him and the first respondent and, therefore, the respondents 2 and 3 are not his children. 18. It is well-settled that the validity of the marriage cannot be decided in an application filed under Section 125 of the Code. If the revision R.P.(FC)No.19/2019 -:9:- petitioner had such a case, it was up to him to have worked out his legal remedies, instead of attempting to take up such a defence in the present application. It is trite law that, a long cohabitation presumes that there is a valid marriage, until disproved. In view of the above finding, the revision petitioner’s denial regarding the paternity of the respondents 2 and 3 is also untenable. Moreover, Exts A1& A2 – birth certificates prove that the revision petitioner is the father of the respondents 2 & 3. 19. The Family Court, on the basis of the prima-facie materials on record, has passed the impugned order. I do not find any illegality, impropriety or irregularity in the impugned order warranting the revision petition to be even admitted. 20. Resultantly, reserving the right of the revision petitioner to work out his remedies in accordance with law, the revision petition is dismissed at the threshold. The Registry is directed to forward a copy of the R.P.(FC)No.19/2019 -:10:- order to the Family Court for proceeding with the execution of the impugned order in accordance with law. Sd/- ## **C.S.DIAS,JUDGE** DST/21.11.23 //True copy// P.A. To Judge