VIMALDAS.K v. VAMIKALAKSHMI.K @ VAIDARBHILAKSHMI.K (minor)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 21[ST] DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 ``` ``` RPFC NO. 525 OF 2023 ``` ``` AGAINST THE ORDER DATED 15.09.2023 IN MC 91/2021 OF FAMILY COURT, THALASSERY ``` ## `REVISION PETITIONER/RESPONDENT:` ``` VIMALDAS.K, AGED 32 YEARS, S/O. PURUSHOTHAMAN, RESIDING AT ASHIRWAD, CHANDERA, MANIYATTAMSOM AND DESOM, P.O.MANIYATT, HOSDURGTALUK, KASARAGOD DISTRICT, (CHANDERA POLICE STATION LIMITS, PIN – 671310 ``` ``` BY ADVS.C.K.SREEJITH VINOD K.V. DEEPIKA K.SASI ``` ## `RESPONDENT:` ``` VAMIKALAKSHMI.K @ VAIDARBHILAKSHMI.K AGED 3 YEARS,(MINOR), D/O. VIMALDAS.K., RESIDING AT UCHOOLIKKUNNIL, KADAMBURAMSOM, KADACHIRADESOM, KANNUR TALUK AND DISTRICT, PIN.670621 REP. BY MOTHER AND NEXT FRIEND SWARNAK.V, D/O. RAMESHAN, AGED 24 YEARS, RESIDING AT UCHOOLIKKUNNIL, KADAMBURAMSOM, KADACHIRADESOM, KANNUR TALUK AND DISTRICT,MOB:8590842729. (EDAKKAD POLICE STATION LIMITS), PIN – 670621 ``` ``` THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.(FC)No.525/2023 -:2:- Dated this the 21[st] day of December, 2023 ## **O R D E R** The revision petition is filed questioning the legality and correctness of the order in M.C.No.91/2021 of the Family Court, Thalassery, ordering the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.5,000/- from the date of order (15.09.2023). The revision petitioner was the respondent and the respondent was the petitioner before the Family Court. 2. The respondent had filed the application under Section 127 of the Code of Criminal Procedure,1973 (‘Code’, for the sake of brevity), against the revision petitioner – her father – seeking enhancement of monthly maintenance allowance from Rs.3,000/- to Rs.10,000/-. It was her case that, the revision petitioner was married to her mother on R.P.(FC)No.525/2023 -:3:- 05.03.2017. Subsequently, the marriage between her parents was dissolved by a decree of divorce. The respondent had filed M.C.No.41/2019 under Section 125(1) of the Code, for an order of maintenance. During the pendency of the proceedings, her parents arrived at a settlement and the revision petitioner paid his wife Rs.8,50,000/- towards past and future maintenance and also agreed to pay Rs.3,000/- per month towards the maintenance of the respondent. Consequent to the agreement, the marriage between the couple was dissolved. However, the revision petitioner failed to pay agreed amount. The respondent has no other source of income and is living under the care of her mother. She has to join school. Hence, she requires a monthly maintenance allowance of Rs.10,000/-. The revision petitioner is working as a High School Teacher and is drawing a salary of Rs.80,000/- per month. Despite having sufficient R.P.(FC)No.525/2023 -:4:- means, he has willfully refused to maintain the respondent. Hence, the application. 3. The revision petitioner filed a counter statement refuting the allegations in the application. He contended that the subject matter in dispute between the parties was settled as per an agreement executed between him and his former wife on 04.07.2019. On the basis of the said agreement, he is paying Rs.3,000/- per month to the respondent. The respondent’s mother is well qualified and has the means to maintain the child. There is no increase in the living expenses of the respondent. Therefore, there is no necessity to enhance the maintenance allowance. It is after borrowing money, the revision petitioner has paid the lump sum amount to the respondent’s mother. Hence, the application may be dismissed. 4. In the trial, the respondent’s mother was R.P.(FC)No.525/2023 -:5:- examined as PW1 and Exts P1 to P13 were marked in evidence. The revision petitioner did not let in any evidence. 5. The Family Court, after appreciating the uncontroverted oral testimony of PW1 and the materials placed on record, by the impugned order, partly allowed the application as already observed above. 6. It is assailing the said order; the revision petition is filed. 7. Heard; Sri.C.K. Sreejith, the learned counsel appearing for the revision petitioner on admission. 8. The learned counsel appearing for the revision petitioner contended that, since M.C.No.41/2019 filed by the respondent was not disposed on merits; but on the basis of an agreement entered into between the revision petitioner and his former wife, the present application under Section 127 R.P.(FC)No.525/2023 -:6:- of the Code is not maintainable. This pivotal was not looked into by the Family Court. Therefore, the impugned order warrants to be interfered by this Court under Section 19(4) of the Family Courts Act, 1964. 9. Is there any illegality, impropriety or irregularity in the impugned order? 10. The revision petitioner admits the paternity of the respondent. It is on record that the revision petitioner was married to the mother of the respondent on 05.03.2017. Subsequently, their marital relationship got strained and they decided to part ways as per an agreement dated 04.07.2019. As per the agreement, the revision petitioner agreed to pay the respondent monthly maintenance allowance @ Rs.3,000/-. On the basis of the agreement, the respondent’s mother withdrew M.C.No.41/2019. 11. The respondent has filed the present application on the ground that, despite the agreement R.P.(FC)No.525/2023 -:7:- the revision petitioner has refused to pay the maintenance allowance to the respondent. It was in the above background, the respondent through her mother had filed the present application under Section 127 of the Code. 12. Indisputably, M.C.No.41/2019 was filed by the respondent under Section 125 of the Code was withdrawn on the assurance made by the revision petitioner that he would maintain the respondent. Therefore, the contention that the present application is not maintainable under Section 127 of the Code, since the earlier case was not decided on merits is a hyper-technical and untenable contention. The withdrawal of the earlier case is on the basis of the undertaking that the revision petitioner would pay Rs.3,000/- per month. The failure to adhere to his undertaking and the escalation of expenses is certainly a change in the circumstances. Therefore, I am of the R.P.(FC)No.525/2023 -:8:- definite view that the application was very much maintainable. 13. It is to be remembered that, although the revision petitioner filed a written objection in the application, he had failed to let in any oral or documentary evidence. Hence, the oral testimony of PW1 and the materials produced by the respondent stand uncontroverted. 14. It is on the strength of the uncontroverted materials and taking into consideration that M.C.No.41/2019 was filed in the year 2019, and the present application was filed when the respondent joined school, I don’t find any unreasonableness in the Family Court enhancing the maintenance allowance from Rs.3,000/- to Rs.5,000/-, especially when the revision petitioner is undisputedly earning Rs.80,000/per month. 15. In the celebrated decision in **Rajnesh v.** R.P.(FC)No.525/2023 -:9:- **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. 16. 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. 17. 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 R.P.(FC)No.525/2023 -:10:- 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. 18. After bestowing my anxious consideration to the pleadings and materials on record, especially the fact that the Family Court has decided the case on the basis of the uncontroverted assertions made by the respondent, I do not find any illegality or impropriety in the impugned order warranting interference by this Court. The revision petition is meritless and is consequentially, dismissed at the threshold. Sd/- ## **C.S.DIAS,JUDGE** DST/21.12.23 //True copy// P.A. To Judge