N M Sreekumar vs S Sreelakshmi

V.G.Arun, J

The revision petitions are filed challenging the order in M.C.No.201 of 2018 of the Family Court, Thiruvananthapuram. RPFC No.257 of 2022 is filed by the husband (Sreekumar), aggrieved by the direction to pay monthly maintenance allowance of Rs.8,000/- to the child. RPFC No.12 of 2023 is filed by the wife (Sreelakshmi), challenging the denial of her claim for maintenance allowance. The essential facts are as under;

The marriage between Sreekumar and Sreelakshmi was solemnised on 17.01.2016. Their son Sreenandh was born on 07.11.2016. Difference of opinion between the spouses arose from the initial days of marriage. After Sreelakshmi went to her parental house on 17.10.2016 in the 9th month of her pregnancy, she was never brought back by Sreekumar. Sreekumar having neglected to maintain Sreelakshmi and Sreenandh, they approached the Family Court seeking maintenance allowance at the rate of Rs.25,000/- and Rs.15,000/- respectively. In support of the claim for maintenance, it was submitted that Sreekumar is employed in Saudi Arabia and is drawing monthly salary ranging between Rs.1 lakh to Rs.1.3 lakhs. It was also submitted that, in spite of being a BHMS degree holder, Sreelakshmi is fully dependent on her father for sustenance. Sreekumar refuted the averments and contended that he is working in a private firm in Saudi Arabia and earning only Rs.25,000/- per month. He alleged that Sreelakshmi is having active practice at home and is earning not less than Rs.75,000/- per month. Before the Family Court, Sreelakshmi was examined as PW1 and Sreekumar's father, who conducted the case as his power of attorney holder, as DW1. Based on the evidence tendered, the Family Court directed Sreekumar to pay maintenance to his child at the rate of Rs.8,000/- per month and declined Sreelakshmi's claim on the premise that, being a qualified Homeo Doctor, there was no reason for her to refrain from practicing.

Heard Advs.G.Sreekumar (Chelur) and V.Santharam for the respective parties.

Learned Counsel appearing for the husband assailed the quantum of maintenance payable to the child on the ground that Rs.8,000/- was highly exorbitant, considering that the child had not even started his schooling. The other contention is that, having found the wife to be earning substantially from her practice as a Homeo Doctor, the Family Court should have directed her to bear half the expenses of the child. The final contention is that the reduction in the husband's income, consequent to his change of employment ought to be taken into consideration.

Learned  Counsel  for  the  wife  and  child contended that the Family Court had grossly erred in holding that, being a qualified doctor, there is no reason for the wife to keep idle. It is submitted that Ext.B3, which is the trump card of the husband, is only a prescription issued by the wife to the husband for cholesterol and dandruff. The document cannot be the basis for assuming that the wife is having independent practice. Moreover, in her evidence, the wife had clarified that, after marriage, she had worked on daily wages for a short period between July and September, 2016. The fact that the wife had filed assets and liabilities, while the husband failed to do so, is also highlighted.

Reliance  is  placed  on  the  decision  in Rajathi v. C.Ganesan [(1999) 6 SCC 326], to point out that in a proceeding under Section 125 Cr.P.C, the statement of the wife that she is unable to maintain herself is sufficient and it is for the husband to prove otherwise. The decision in Chaturbhuj v. Sita Bai [(2008) 2 SCC 316], is pressed into service to contend that the phrase 'unable to maintain herself' in Section 125 has to be understood as the means available to the deserted wife while she was living with her husband and would not take within itself the efforts for survival made by the wife after desertion. Relying on the decision of the Apex Court in Rajnesh v. Neha and Another [(2021) 2 SCC 324], it is submitted that the living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children etc. Further, extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support.

In conclusion, it was submitted that the wife being unable to maintain herself, her claim ought to be allowed as such and as the child is 7 years now, the quantum of maintenance should not be interfered with.

The fact that the husband was/is employed is not in dispute. No evidence is produced by the husband to disprove the wife's contention that he is receiving more than one lakh rupees as monthly salary. The husband did not even enter the dock to give evidence and made his father to give evidence as power of attorney holder. The deposition of the power of attorney holder reveals that he had no definite answer to many of the questions, including the question regarding the present employment and salary of his son. Moreover, while the wife filed affidavit of disclosure as mandated in Rajnesh (supra), no such affidavit is seen filed by the husband. As such, the wife's claim that the husband is earning more than one lakh a month has to be accepted.

The Family Court declined the wife's claim for maintenance allowance, based on the husband's contention that she is having private practice and is earning around Rs.75,000/- per month. Surprisingly, except Ext.B3, no other evidence was let in by the husband to prove this contention. Ext.B3 is being only a prescription given by the wife to the husband and cannot, by any extent of imagination, be taken as proof of the wife being employed. The observation of the Family Court that there is no reason for a Homeo Doctor not having independent practice and the assumption that the wife is still practicing, are hence unsustainable. There may be myriad reasons for a qualified woman from not taking up employment or pursuing her profession. In her deposition, the wife has clearly stated that she is not practicing because of her responsibility of looking after the child. In Rajathi (supra), while finding fault with the High Court for having put the burden on the wife to prove that she was unable to maintain herself, the Apex Court held that the words 'unable to maintain' herself in Section 125 would not take within itself the efforts made by the wife to somehow survive after her desertion. The court also held that, since the obligation of the husband under Section 125 is to maintain his wife and children, it is for him to show that he has no sufficient means to discharge the obligation that had not neglected or refused to maintain his wife and children. As against this, the statement of the wife that she was unable to maintain herself was held to be sufficient. In Chaturbhuj (supra), the test for determining the wife's ability to maintain herself was held to be an enquiry whether the wife is in a position to maintain herself in the manner she used to live with her husband. The observation of the Family Court that, being a qualified Homeo Doctor, the wife would be earning substantially from private practice goes against the finding of the Apex Court in Sunitha Kachwaha and Others v Anil Kachwaha [(2014) 16 SCC 715] that, merely because the wife is a qualified post graduate, it would not be sufficient to hold that she is in a position to maintain herself.

The factual circumstances and the legal position discussed above leads me to the conclusion that the judgment of the Family Court, to the extent it denied maintenance allowance to the wife, is illegal. Having held so, the quantum of maintenance that can be awarded to the wife has to be decided. Here, the uncontroverted averment of the wife that the husband is earning more than rupees one lakh a month assumes relevance. Considering the above factor and the manner in which the wife could have lived, had she continued with her husband, the quantum of maintenance is fixed at Rs.12,000/- per month. The child being aged 7 years now, would have commenced his school education. Being so, I find no reason to interfere with the maintenance allowance ordered for the child.

In the result, RPFC No.257 of 2022 is dismissed and RPFC No.12 of 2023 is allowed in part and the following directions are issued;

(i) The respondent is directed to pay maintenance allowance to the first revision petitioner at the rate of Rs.12,000/- from the date of petition.

(ii) The arrears of maintenance, calculated at the rate of Rs.12,000/- per month, shall be deposited before the Family Court within three months.

(iii) Henceforth, the monthly maintenance of Rs.12,000/- to the first revision petitioner and Rs.8,000/- to the second revision petitioner shall be deposited/paid before the 5th of every month.