Arafath vs Shana

C.S.Dias, J

The revision petition is filed questioning the legality and correctness of the order in M.C No.22/2015 of the Family Court, Nedumangad, directing the revision petitioner to pay monthly maintenance allowance @ Rs.5,000/- to the respondent from the date of petition (22.1.2015). The revision petitioner was the respondent and the first respondent was the petitioner before the Family Court.

Brief facts

The respondent had filed the application under Sec.125 of the Code of Criminal Procedure (in short,“Code”), seeking an order of monthly maintenance allowance. It was her case that she was married to the revision petitioner on 27.10.2008. The revision petitioner deserted her on 9.3.2013. The respondent was working as a Teacher on temporary basis, but her service was terminated. She does not have any means to maintain herself. The revision petitioner is working as an Office Assistant and is drawing a monthly salary of Rs.17,000/-. He is also conducting a stationery shop and is getting an income of Rs.15,000/- per month. Hence, the application.

The revision petitioner had filed a written objection refuting the allegations in the application. He admitted the marriage, but he contended that the respondent was living separately from him without sufficient cause. The revision petitioner had filed O.P.No.30/2011, which was settled and the parties resumed cohabitation. However, subsequently, the revision petitioner again deserted the respondent. The respondent is working as a Teacher and she has the means to maintain herself. Hence, the application may be dismissed.

The respondent was examined as PW1 and the revision petitioner was examined as CPW1.

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 allowance @ Rs.5,000/-.

It is aggrieved by the said order; the revision petition is filed.

Heard; Sri.B.Harish Kumar, the learned counsel appearing for the revision petitioner and Sri.K.K.Dheerendrakrishnan, the learned counsel appearing for the respondent.

The learned counsel appearing for the revision petitioner submitted that in addition to the grounds that have been urged in the memorandum of revision petition, the respondent has been appointed as a L.P.School Teacher by order dated 26.9.2022 of the Deputy Director of Education, Pathanamthitta. As the respondent is presently employed, the revision petitioner is not liable to maintain the respondent.

Hence, the revision petition may be allowed.

The learned counsel appearing for the respondent submitted that the revision petitioner had not produced any material before the Family Court to prove the employment of the respondent. This Court may not entertain the revision petition.

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

The revision petitioner admits his marriage with the respondent.

The respondents’ case was that although the revision petitioner is employed as an Office Assistant and is drawing a salary of Rs.17,000/- per month and also Rs.15,000/- per month from his stationery shop, he has refused to maintain her.

The revision petitioner's defence was that the respondent was living separately from him without sufficient reason or cause. The respondent is employed as a Teacher and has the means to maintain herself.

Hence, the application may be dismissed.

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.

It is on record that the revision petitioner was working as an Office Assistant and is drawing a salary of Rs.17,000/- per month.

Subsequently, the revision petitioner had filed Bail Application No.9587/2021 before this Court for an order of pre-arrest bail pursuant to a complaint filed by the respondent against the revision petitioner. The revision petitioner had filed an affidavit, inter alia, stating that he is working as a Junior Health Inspector in the Primary Health Centre, Malayadi and that he is prepared to pay a monthly maintenance allowance @ Rs.5,000/- to the respondent, subject to the final orders to be passed in this revision petition. This Court, by order dated 5.7.2022, allowed the bail application recording the affidavit filed by the revision petitioner.

Even though the revision petitioner has alleged that the respondent is living separately from him without sufficient cause, there is no material to substantiate that he had made any earnest effort to resume cohabitation with the respondent. He also did not file any application for a decree for restitution of conjugal rights. Furthermore, it is on record that on the basis of the complaint lodged by the respondent, crime No.2392/2021 was registered by the Aryanad Police against the revision petitioner alleging him to have committed the offences under Secs.294(b) 323, 324, 506 and 354 read with Sec.308 of the Indian Penal Code. The facts and circumstances prima facie establish that the respondent cannot be expected to cohabit with the revision petitioner.

Taking into account the above facts and circumstances, especially the fact that the revision petitioner is presently employed as a Junior Health Inspector and at the time of the application, he was employed as an Office Assistant and earning Rs.15,000/- and the fact there was no material produced before the Family Court to prove that the first respondent was employed, I hold the quantum of maintenance to be reasonable and justifiable.

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 Sec.19(4) of the Family Courts Act,1984. The revision petition is meritless and is only liable to be dismissed.

At the said point of time, the learned counsel appearing for the revision petitioner argued that the revision petitioner’s right to seek for alteration/cancellation of the impugned order may be left open, especially since the first respondent has now secured an employment as a Teacher as per the order of the Deputy Director of Education, Pathanamthitta.

Resultantly, the revision petition is dismissed, without prejudice to the right of the revision petitioner to work out his remedies, in accordance with law. It is made clear that this Court has not expressed anything on the merits of the proposed application. Needless to mention, if the revision petitioner has already 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.