Abdul Gafoor vs Sheera Banu

C.S.Dias, J

The revision petition is filed questioning the legality and correctness of the order in M.C No.46/2014 of the Family Court, Kasaragod, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.4,000/- to the first respondent and Rs.3,000/- to the second respondent. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court.

Brief facts

The respondents had filed the application under Sec.127(1) of the Code of Criminal Procedure (in short, “Code”), seeking alteration of maintenance allowance ordered in MC No.174/2008, by way of enhancement. It was their case that the revision petitioner was married to the first respondent on 10.2.1986. The second respondent was born in their wedlock. As the revision petitioner refused to main the respondents, they had filed M.C 174/2008 before the Family Court, for an order of maintenance. The application was allowed and the revision petitioner was directed to pay a monthly maintenance allowance of Rs.2,500/- to the first respondent and Rs.1,500/- to the second respondent. However, due to the change of circumstances, the respondents are unable to maintain themselves with Rs.4,000-. The revision petitioner is working as a Seaman and is earning Rs.1,00,000/-per month. He is also getting an agricultural income of Rs.2,00,000/- per annum. Therefore, the respondents are entitled to enhancement of maintenance @ Rs.10,000/- and Rs.6,000/-, respectively. Hence, the application.

3.The revision petitioner resisted the application by filing a written objection. He contended that he has already paid a reasonable amount as maintenance under the Muslim Women (Protection of Rights) on Divorce Act, 1986 and is continuing to pay the maintenance as ordered by the Family Court. Hence, there is no change of circumstances. The revision petitioner does not have any job or income and he is unable to maintain the respondents even at the present rate. Hence, the application may be dismissed.

The first respondent was examined as PW1 and Exts.P1 to P4 were marked on her side. The revision petitioner was examined as DW1 and Exts D1 and D2 were marked through him in evidence.

The Family Court, after appreciating the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay the monthly maintenance allowance to the respondents as observed earlier.

It is assailing the said order; the revision petition is filed.

Heard; Sri.Kodoth Sridharan, the learned counsel appearing for the revision petitioner and Sri.T.Madhu, the learned counsel appearing for the respondents.

The learned counsel appearing for the revision petitioner submitted that the quantum of maintenance fixed by the Family Court is on the higher side. Moreover, the second respondent has attained majority. Hence, the revision petitioner is not liable to pay maintenance allowance to the second respondent anymore. Therefore, the revision petition may be allowed.

The  learned  counsel  appearing  for  the respondents defended the impugned order and prayed that the revision petition be dismissed.

Is there any illegality, impropriety or irregularity in the impugned order?

The application was filed under Section 127 of the Code, to enhance the maintenance allowance ordered in M.C 174/2008.

The Family Court, by order dated 7.10.2009, had partly allowed the application by ordering the revision petitioner to pay the respondents monthly maintenance allowance @ Rs.2,500/- and Rs.1,500/-, respectively to the respondents.

It is after a lapse of more than six years that the respondents filed the present application on the ground of change of circumstances. They contended that the revision petitioner is a seaman and is earning Rs.1,00,000/- per month and is also getting an agricultural income of Rs.2,00,000/- per annum.

The revision petitioner resisted the application and contended that the application filed by the first respondent under the Act was allowed and he paid an amount of Rs.4,80,000/- to the first respondent. He further contended that at present he has no job or income and he is unable to maintain the respondents. Hence, the application may be allowed.

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.

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.

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 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 and the husband is 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.

Although the revision petitioner had taken the defence that the learned Magistrate had passed an order under Sec.3 of the Act, directing him to pay an amount of Rs.4,80,000/- to the first respondent, there is no proof to substantiate that the revision petitioner has actually paid the said amount. Furthermore, the present application for alteration of maintenance allowance was filed after six years from the date of passing of the order in M.C No.174/2008.

The revision petitioner's other defence is that he is presently not employed. It is well settled that an able bodied person is bound to maintain his wife and children.

The revision petitioner has not produced any material to prove that the revision petitioner was suffering from any ailment or physical disability. Thus, he is assumed to be an able bodied person.

In the year 2014, the revision petitioner was aged 50 years. A person of his age would have easily earned Rs.1,000/- per day for twenty five days. Thus, I fix the revision petitioner's notional monthly income at Rs.25,000/- . Therefore, I am of the definite view that Rs.7,000/- ordered to be paid as maintenance to the respondents is reasonable and justifiable. If at all the revision petitioner has a case that the second respondent has attained majority, he would be at liberty to file an application under Section 127 of the Code

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 devoid of any merits and is only liable to be dismissed.

Resultantly, the revision petition is dismissed. Needless to mention, if the revision petitioner has deposited any amount, pursuant to the interim orders of this Court, he would be entitled to adjust the deposited amount, while paying the balance amount due, as per the impugned order.