Baiju vs Baiju
2021 Latest Caselaw 2165 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

             THE HONOURABLE MRS. JUSTICE MARY JOSEPH

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                       RPFC.No.238 OF 2016

AGAINST THE COMMON JUDGMENT IN MC NO.309/2013 DATED 21-03-2016 OF
                     FAMILY COURT, ATTINGAL


NAME AND ADDRESS OF THE REVISION PETITIONER/RESPONDENT:

             BAIJU,
             S/O. SASIDHARAN, VETTUKATTIL VEEDU, KULAMUTTOM,
             MANAMBOOR VILLAGE, CHIRAYINKIL TALUK,
             THIRUVANANTHAPURAM DISTRICT.

             BY ADVS.
             SRI.O.D.SIVADAS
             SMT.ANITHA MATHAI MUTHIRENTHY

NAME AND ADDRESS OF THE RESPONDENTS/PETITIONERS:

      1      DIVYA,
             D/O. MOHANAN, DIVYA BHAVAN, PALAMKONAM,
             PERUMKULAM P.O., ALAMCODE, MANAMBOOR
             VILLAGE,CHIRAYINKIL TALUK,
             THIRUVANANTHAPURAM DISTRICT.

      2      RICHA,
             AGED 6 YEARS, MINOR RESIDING AT DIVYA
             BHAVAN,PALAMKONAM, PERUMKULAM P.O.,
             ALAMCODE,MANAMBOOR VILLAGE, CHIRAYINKIL TALUK,
             THIRUVANANTHAPURAM DISTRICT.REPRESENTED BY MOTHER IST
             RESPONDENT.

             BY ADV. SRI.LATHEESH SEBASTIAN

    THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
    20-01-2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 RPFC.No.238 OF 2016                   2




                                    ORDER

Dated this the 20th day of January, 2021

The revision on hand is filed against the common judgment

passed by Family Court, Attingal on 21.03.2016 in M.C.No.309 of

2013. The revision petitioner is the respondent in the M.C. M.C

was filed under Section 125 Cr.P.C. seeking for monthly

maintenance allowance at the rate of Rs.7,000/- to the 1 st

petitioner and Rs.6,000/- to the 2nd petitioner. The M.C. was

considered alongwith O.P.No.1438 of 2013 filed by the husband

seeking for restitution of conjugal rights under Section 9 of the

Hindu Marriage Act, O.P.No.402 of 2014 is filed by the wife seeking

for a decree for dissolution of marriage under Section 13(1) (ia) of

the Hindu Marriage Act and O.P.No.1464 of 2013 filed for return of

money and gold ornaments under Section 7 of the Family Courts

Act. Therefore, evidence was adduced in the M.C. in common with

the above O.Ps.

2. For the sake of clarity, the parties to this revision will

hereinafter be referred to as the respondent and petitioners 1 and

2 in accordance with their status in the M.C. before the Family

Court.

3. The Family Court has appreciated the evidence in the

M.C. and allowed the same and directed the respondent to pay

Rs.5,000/- each as monthly maintenance allowance to the 1 st and

2nd petitioners. The respondent is aggrieved by the order granting

monthly maintenance allowance to the extent of claim of the

petitioners itself and therefore filed the revision on hand.

4. Sri.O.D.Sivadas, the learned counsel for the respondent

has contended that the rate of monthly maintenance ordered by

the Family Court by the impugned order is excessive and reduction

by way of modification is required. According to him it has come

out in evidence before the Family Court that the respondent

himself has been remitting the educational expenses of the 2 nd

petitioner at the school and that has been admitted by the 1 st

petitioner also. According to him, it has also come out in evidence

that cash to the extent of Rs.25,00,000/- has been withdrawn

from the account of the respondent by the 1 st petitioner and in the

said circumstances, the monthly maintenance allowance ordered

as Rs.5,000/- each to petitioners is excessive.

5. The learned counsel for the petitioners has contended

that Ext.A7, the Salary Advice of the respondent produced before

the Family Court and formed part of record of evidence would

show that the respondent was earning 656.25 Saudi Riyals from

his occupation in a company abroad. According to her when the

respondent was getting salary to that extent, the Family Court is

perfectly justified in ordering monthly maintenance allowance at

the rates of Rs.5,000/- each to the petitioners. According to the

learned counsel, interference with the impugned order is not called

for, for the reasons.

6. This Court has gone into the pleadings and evidence. It

has been pleaded by the 1 st petitioner before the Family Court that

the respondent was working in a company abroad and was getting

a higher sum as salary. It has also been pleaded by the 1 st

petitioner that she was unemployed and unable to maintain herself

and the minor child. Admittedly, Rs.25,00,000/- has been

withdrawn by her from the account of the respondent during the

period 2007-08 and it was utilised for various purposes like

payment of premium towards insurance and other allied

expenses. M.C. was filed in the year 2013 and taking due

consideration of it, the impugned judgment was passed in the year

2016. Therefore, the withdrawal of the amount during the period

2007-08 cannot form a reason to deny payment of monthly

maintenance allowance contemplated under Section 125 Cr.P.C to

petitioners 1 and 2. Admittedly of the 1 st petitioner educational

expenses of the 2nd petitioner were met with by the respondent.

But by production and marking of Ext.A7 in evidence, the

respondent has proved that he was working in a company abroad

and was getting 656.25 Saudi Riyals monthly. It has not come out

in evidence that the respondent was a man suffering from any

ailments or ill health. Therefore, when the respondent was

proved as a man having sufficient monthly income, and also

having good health, he cannot evade from his legal obligation to

maintain his wife and child neglected by him. Family Court has

ordered Rs.5,000/- each in their favour as monthly maintenance

allowance. In the backdrop of the discussion made on the

evidence as above, this Court finds that the rates of monthly

maintenance allowance ordered by the Family Court are just and

reasonable.

7. It is submitted by the learned counsel that Rs.3,000/-

and Rs.2,500/- respectively directed to be paid to petitioners 1

and 2 by interim order passed on 08.06.2016 have already been

paid. But absolutely no evidence is adduced to establish the sum

already paid by the respondent towards the interim maintenance

allowance ordered by this Court. However, this Court is inclined

to observe that if any amount has already been paid by the

respondent towards the interim maintenance allowance ordered by

this Court, that must be credited in the amount payable as

monthly maintenance allowance by the impugned order.

Revision fails and is dismissed.

Sd/-

MARY JOSEPH

JUDGE MJL