IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
RPFC.No.105 OF 2020
AGAINST THE ORDER IN M.C.NO.270/2019 DATED 13-11-2019 OF
FAMILY COURT, THALASSERY
REVISION PETITIONERS/PETITIONERS:
1 LIDIYA THOMAS,
AGED 33 YEARS,
D/O THOMAS, R/AT PUTHENPURACKAL HOUSE,
ADAKKATHODE P.O., KELAKAM AMSOM, IRITTY TALUK,
KANNUR DISTRICT - 670 674.
2 ERIC, S/O SIJU KURIACHAN,
AGED 3 YEARS (MINOR)
REPRESENTED BY MOTHER AND NEXT FRIEND LIDIYA THOMAS,
1ST PETITIONER
BY ADVS.
SRI.JACKSON JOHNY
SRI.MUHAMMED YASIL
SMT.ROSIN JOSEPH
RESPONDENT/COUNTER PETITIONER:
SIJU KURIACHAN, S/O KURIAKOSE,
AGED 40 YEARS,
NAMBYAPARAMBIL HOUSE, UDAYAGIRI P.O., PIN-670 571,
THALIPARAMBA TALUK, KANNUR DISTRICT
(ALAKKODE POLICE STATION LIMIT).
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
07.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RPFC.No.105 OF 2020
2
ORDER
Dated this the 7th day of January, 2021 The revision petitioner has filed the revision on hand against an order passed by Family Court, Thalasssery on 13.11.2019 in M.C.No.270 of 2019. M.C.No.270 of 2019 is an application filed by the wife and son of the revision petitioner under Section 125 Cr.P.C and that was tried alongwith O.P.No.697 of 2019, filed for return of gold ornaments or it's value thereof and for past maintenance to the respondents.
2. In the M.C, maintenance at the rate of Rs.10,000/- and Rs.60,000/- monthly was sought respectively in favour of the 1st and 2nd respondents. The Family Court on due appreciation of the evidence allowed the application and directed the revision petitioner to pay maintenance at the rate of Rs.5,000/- to the 1st respondent and Rs.15,000/- to the 2nd respondent from the date of the petition. Aggrieved by the order passed by the Family Court, the respondents are before this Court seeking for enhancement of the monthly maintenance ordered in favour of them.
RPFC.No.105 OF 2020 3
3. For the sake of clarity, the parties to this revision will hereinafter be referred to as the petitioners and the respondent in accordance with their status in the M.C. before the Family Court.
4. It is contended by Sri.Jackson Johny, the learned counsel for the petitioners that the 1st and 2nd petitioners were neglected to be maintained by the respondent from 28.12.2015. According to him, the 1 st petitioner was working as a Nurse in U.K for 4 months before the birth of the 2 nd petitioner and left U.K after abandoning the job. According to him, the 1st petitioner was made to stay at U.K by the respondent for the purpose of obtaining Permanent Residence status and after obtaining the same she was sent to her native place. Thereafter, the respondent failed to contact the petitioners and neglected to maintain them. The 2 nd petitioner was a child suffering from Autism and needs special care and attention. He also needs regular skill training and speech therapy. Exts.A3 to A5 were marked by the petitioners before the Family Court to establish the disability of the 2 nd petitioner. Ext.A4 was also marked in evidence to establish that the 2 nd petitioner is 70% disabled on account of the Autism. RPFC.No.105 OF 2020 4 According to the learned counsel around Rs.37,500/- is required monthly for the skill training and speech therapy of the 2nd petitioner. According to him, the Family Court evenafter consideration of the above documents has ordered only Rs.15,000/- as monthly maintenance to the 2 nd petitioner and Rs.5,000/-, to the 1st petitioner. According to him, the quantum ordered by the Family Court as above are on the lower side and interference and modification by way of enhancement, is warranted.
5. As already stated, M.C was considered alongwith O.P. No.697 of 2019 and a common judgment was passed by the Family Court. It is found that the respondent failed to file counter statement in the M.C and was set ex parte by the Family Court. In that context relying on the proof affidavit filed by the 1st petitioner and the documentary evidence adduced as Exts.A1 to A5, the Family Court has passed the impugned order.
6. It was averred by the 1st petitioner and sworn to in the proof affidavit that the respondent was working as a Health Care Assistant in U.K and was getting Rs.4,00,000/- per month as salary. It was also pleaded and sworn to in the proof RPFC.No.105 OF 2020 5 affidavit in tune with that the respondent is also having landed properties. But apart from the interested version in the proof affidavit, other materials to substantiate are not produced by the 1st petitioner and got marked in evidence. The 1 st petitioner has a case that she had also worked as a Nurse in U.K during her stay there with the respondent and was also earning monthly income at the relevant time. Therefore, she could have produced some material to show the income earned by her from her job as a Nurse at U.K., so as to help the Family Court to have an idea about the monthly income obtained by the respondent as a Health Care Assistant and thereby assess the monthly maintenance payable. But the 1st petitioner failed to produce materials even in that regard. Therefore materials are not available before the Family Court to establish that the respondent is working as a Health Care Assistant at U.K at the relevant time and is earning monthly income of Rs.4,00,000/-. For the reason that the version of the 1st petitioner was not controverted by the respondent, the Family Court has found the respondent as a man of sufficient means and accordingly fixed the monthly maintenance payable to each of the petitioners as Rs.5,000/- and Rs.15,000/-. The 1 st petitioner RPFC.No.105 OF 2020 6 though has averred in the petition seeking monthly maintenance that the 2nd petitioner needs around Rs.37,500/- monthly for skill training and speech therapy, she failed to adduce any evidence in that regard. It is submitted by the learned counsel that bills are with him and the same will be produced before this Court. He made the bills available to this court at the time of argument for a glance. It is found that the bills are not sealed. It is also found that the payments were made twice on the same day to a single institution. Therefore, even if an opportunity is granted, the production of the bills and marking of those in evidence would not help the petitioner as admissibility of those is doubtful for want of seal. Therefore, there is absolutely no evidence to convince this Court that around Rs.37,500/- was spent by the 1 st petitioner for the speech therapy and skill training of the 2nd petitioner.
7. It has been established from Ext.A3 issued from Christu Raj Hosptial, Thokkilangady that the child requires skill training and speech therapy. It was also established from Ext.A4 that the child is 70% disabled. From Ext.A3 it is clear that the child requires continuous skill training and speech therapy. Apart from that, the child also needs expenses for RPFC.No.105 OF 2020 7 conveyance to and fro, the hospital. The Family Court failed to consider that aspect while fixing the monthly maintenance payable.
8. The 1st petitioner's version was that she was forcefully sent by the respondent from U.K to her home town. According to her, the child being disabled and in her custody, she is not in a position to do any job at present.
9. A 70% disabled child needs proper care and attention of his mother. Therefore, there is no reason to disbelieve the version of PW1 that she is unable to do any job. This Court is convinced about the need for more money for the proper care of the 2nd petitioner and with the monthly maintenance stands ordered by the Family Court, it is difficult to be met with.
10. The respondent though was served with notice has not taken care to attend the Family Court and to file a counter statement in the M.C refuting the claims of the petitioner. Even before this Court, the service of notice was recorded as complete as early as on 16.09.2020, but the respondent has not shown the courtesy even to get a vakalath filed through a counsel to represent him.
RPFC.No.105 OF 2020 8
11. In the light of the discussion made herein above, this Court finds that the monthly maintenance stands ordered by the impugned order in favour of the 1st and 2nd petitioners are inadequate and unjust. This Court is inclined to modify the rates by enhancing those to Rs.7,000/- and Rs.20,000/-.
In the result, the revision is allowed. The monthly maintenance payable respectively to the 1st and 2nd petitioners are enhanced to Rs.7,000/- and Rs.20,000/-. The respondent shall pay the modified monthly maintenance from the date of the petition.
Sd/-
MARY JOSEPH JUDGE NAB