K.K. Muhammed vs Fathima

C.S.Dias, J

The revision petition is filed questioning the legality and correctness of the order in M.C No.382/2013 of the Family Court, Tirur, ordering the revision petitioner to pay the respondent – his wife - monthly maintenance allowance @ Rs.4,000/- from the date of petition (19.07.2012). The revision petitioner was the respondent and the 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”) against the revision petitioner seeking monthly maintenance allowance @ Rs.10,000/-. It was her case that she was married to the revision petitioner on 30.04.1981 and they have two children born in the wedlock. The children have attained majority. The revision petitioner has treated the respondent with matrimonial cruelty. He has also contracted another marriage, during the subsistence of his marriage with the respondent and is living with that woman. The revision petitioner has refused to maintain the respondent. Hence, the application.

The revision petitioner had filed a written objection refuting the allegations in the application. He contended that he contracted the second marriage because the respondent refused to live with him. The revision petitioner is a toddy tapper and does not have the means to maintain the respondent. Hence, the application may be dismissed.

The respondent and her son filed O.P.No.904/2013 and the respondent filed O.P.No.150/2014 for decrees of past maintenance and return of money and gold ornaments, respectively against the revision petitioner.

The Family Court consolidated and jointly tried the three proceedings. The respondent was examined as PW1 and the revision petitioner was examined as RW1 and Exts.R1 and R2 were proved through him.

The Family Court, by a common judgment, partly allowed the application by directing the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.4,000/-.

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

Heard; Sri.Jamsheed Hafiz, the learned counsel appearing for the revision petitioner and Sri.K.P.Sudheer, the learned counsel appearing for the respondent.

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

The respondent's case in the application was that, the revision petitioner, though having sufficient means, has refused to maintain her. Instead, the revision petitioner had during the subsistence of their marriage, contracted a second marriage and is living with the said women.

The revision petitioner’s defence was that he contracted a second marriage since the respondent refused to live with him. He is only working as toddy tapper and does not have the means to maintain the respondent as sought for in the application. 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, 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.

It is well settled in a plethora of judgments that the Courts are permitted to do some guess work to arrive at the quantum of maintenance to be fixed in an application filed under Section 125 of the Code.

In the case on hand, indisputably, the revision petitioner has stated that he has already contracted a second marriage. In view of the said admission, the separate residence of the respondent is justifiable. The respondent's claim was that the revision petitioner was employed abroad and was earning a substantial income. However, on the contrary, the revision petitioner alleged that he is only a toddy tapper and does not have the means to pay maintenance to the respondent, as sought for in the application.

The revision petitioner was aged 55 years at the time of filing of the application. There is no material to show that he is suffering from any mental or physical ailments. He has also not revealed his actual income. Therefore, it is assumed that he is an able bodied person. An able bodied person would easily earn atleast Rs.20,000/- per month in the year 2013. Thus, I am of the definite view that the quantum of maintenance fixed by the Family Court @ Rs.4,000/- per month is reasonable and justifiable. There is no irregularity or impropriety in the impugned order warranting interference of this Court under Section 19(4) of the Family Courts Act, 1984. The revision petition is devoid of any merit 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 calculating the arrears of maintenance payable by him as per the impugned order to the respondent.