Kerala High Court

Jayasree vs Shivaprasad on 27 January, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

            THE HONOURABLE MRS. JUSTICE MARY JOSEPH

   WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942

                          RPFC.No.135 OF 2016

 AGAINST THE ORDER/JUDGMENT IN MC 298/2014 DATED 11-11-2015 OF
                     FAMILY COURT,THRISSUR


REVISION PETITIONER/PETITIONER No.1:

             JAYASREE
             AGED 28 YEARS
             D/O.RAVEENDRAN,MADATHIVALAPPIL HOUSE,
             EDAPAL,PONNANI THALUK, MALAPURAM-679 576.

             BY ADVS.SRI.VINAY RAMDAS
                     SMT.K.B.ANAMIKA
                     SRI.VISHNUPRASAD NAIR

RESPONDENT/RESPONDENT:

             SHIVAPRASAD
             AGED 37 YEARS, S/O.BHASKARAN,PAVITTHAKULANGARAYIL
             HOUSE, AKATHIYUR, KUNNAMKULAM,THALAPPILLY THALUK,
             THRISSUR-680 519.

             R1   BY   ADV.   SRI.AKHIL K.MADHAV
             R1   BY   ADV.   SRI.T.R.JERRY SEBASTIAN
             R1   BY   ADV.   SRI.V.PRASANTH
             R1   BY   ADV.   SRI.THOMAS M.JACOB

     THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13-08-2020, THE COURT ON 27-01-2021 PASSED THE FOLLOWING:
 R.P.(F.C) No. 135 of 2016
                                 -:2:-

                                                             C.R.

                              ORDER

Dated this the 27th day of January, 2021

The challenge in the revision is against an order passed by

Family Court, Thrissur in M.C. No.298/14. The 1st petitioner in

the M.C., who has been denied with monthly maintenance, has

approached this Court in the revision on hand. The above M.C

was filed by petitioners 1 to 3 who are wife and minor children of

the respondent seeking for monthly maintenance at the rate of

Rs.10,000/- each. The Family Court has appreciated the evidence

adduced by the parties and granted monthly maintenance at the

rate of Rs.2,000/- each to minor petitioners 2 and 3 from the

date of the petition and authorised the 1 st petitioner to collect the

amount on their behalf. Maintenance claimed by the 1 st

petitioner was declined for the reason that she refused to join the

respondent in matrimony without a reasonable cause.

2. The facts of the case are summarised hereinbelow. For

the sake of clarity, the parties to this revision are referred to

hereinafter as the 1st petitioner and the respondent. The

marriage between the 1st petitioner and the respondent was R.P.(F.C) No. 135 of 2016

solemnised on 14.09.2006 and two children were born in the

wedlock on 15.12.2007 and 21.08.2013. The respondent was

working as supervisor in Dubai for a monthly salary of

Rs.1,00,000/-. The 1st petitioner was unemployed. The 2nd

petitioner has started his education. The respondent ill-treated

the 1st petitioner under the influence of alcohol and neglected to

maintain the petitioners from 2013 onwards. In the said

circumstances, M.C was filed seeking for monthly maintenance at

the rate of Rs.10,000/- each to petitioners 1 to 3.

3. The respondent filed objection admitting the marriage

and birth of two children. The following contentions were raised.

He is working as goldsmith and his monthly income is

Rs.10,000/-. His 75 year old mother, who is a heart patient and

suffering from diabetics, hypertension, cardiac problems and

other allied diseases, was maintained by him. After a few days of

stay jointly at the matrimonial home, the respondent who was

employed abroad left the place. While working at gulf he had a

monthly salary of 750 Dirhams and keeping 200 Dirhams for

meeting his personal expenditure, the remaining amount was

sent to his native place. The 1st petitioner misbehaved with his R.P.(F.C) No. 135 of 2016

mother during her stay at the matrimonial home. She was in the

habit of leaving matrimonial home on her volition without

reasons. In February, 2010, the respondent came to native place

and took the petitioners to his house. The 1 st petitioner was

reluctant to live in the matrimonial home with the mother of the

respondent. In 2010, the respondent abandoned his

employment at gulf and returned to his native place. Though he

invited the 1st petitioner to reside with him at the matrimonial

home, she refused. He filed O.P.No.482/2011 seeking for a

decree for restitution of conjugal rights. The 1 st petitioner agreed

to resume cohabitation during the pendency of the case and

therefore the above case was not proceeded with further. After

residing together for few days, the 1 st petitioner ill-treated the

respondent and she left the matrimonial home in 2013 without

any reason. Efforts were taken by the respondent through

mediators to bring back the 1st petitioner to the matrimonial

home, but failed. In a petition filed by the respondent before

Janamaithri Police Station, Kunnamkulam the 1 st petitioner was

called for having a talk on amicable settlement. She openly

stated before the Police that she dislikes the respondent. The 1 st R.P.(F.C) No. 135 of 2016

petitioner had left the matrimonial home without any reason and

therefore she is not entitled to get any maintenance. Accordingly,

M.C was sought to be dismissed.

4. Before the Family Court, oral evidence was adduced by

the 1st petitioner as PW1. The respondent did not adduce any

oral evidence but marked Exts.D1 to D4. The Family Court has

appreciated the evidence and dismissed the claim of the 1 st

petitioner for monthly maintenance, after finding that she was

residing separately from the husband without any reasonable

cause.

5. The learned counsel for the 1st petitioner has contended

that in a claim made under Section 125 Cr.P.C seeking monthly

maintenance, a claimant shall establish only her inability to

maintain herself, the sufficiency in the means of her husband to

maintain her and neglect of her husband to maintain her.

Therefore, according to the learned counsel, for a petition

seeking maintenance under Section 125 Cr.P.C to sustain,

pleadings must be made by the claimant in the petition filed,

positively that she is unable to maintain herself, she was

neglected to be maintained by the husband and that her husband R.P.(F.C) No. 135 of 2016

has sufficient means to maintain her. The claimant must also

establish the above three pleadings by cogent evidence. In a

context, wherein specific pleadings have been taken by the

claimant on the three factors as above and evidence has also

been adduced to satisfactorily establish those, claim for

maintenance ought not to have been denied by the Court.

According to the learned counsel, the 1 st petitioner in the case

has averred in the petition seeking maintenance, all the three

factors as above positively and has also adduced cogent evidence

to substantiate those. According to him, when the context being

so, the Family Court ought not to have rejected the claim of the

wife for monthly maintenance from the husband for the reason

that she refused to live in the company of the respondent without

a valid reason. According to him, grounds envisaged under sub-

section(4) of Section 125 viz, the wife is living in adultery or

refuses to live with husband without any sufficient reason or

living separated by mutual consent would only empower the

Court to disentitle the wife from receiving allowance for

maintenance or interim maintenance and expenses of

proceedings as the case may be, and to cancel the order granting R.P.(F.C) No. 135 of 2016

monthly maintenance and expenses of proceeding, if the

husband succeeds in proving any of those. According to him,

sub-section(4) of Section 125 speaks about incidents that would

occur posterior to the passing of the order granting maintenance

under Section 125 (1) and therefore cannot be taken as grounds

to decline maintenance. According to the learned counsel, if the

reasons enumerated under sub-section (4) of Section 125 are

also relevant for consideration in an application seeking

maintenance under Section 125 Cr.P.C as held by the Family

Court in the impugned order, those would have find a place in

Section 125 (1) itself. According to the learned counsel, the

Family Court is totally unjustified in declining maintenance to the

1st petitioner after a finding that she refuses to live with her

husband without any sufficient reason, which forms a ground

only for declaring the 1st petitioner as disentitled to get the

already ordered monthly maintenance in her favour and to cancel

the order granting monthly maintenance and expenses of

proceedings against her.

6. The learned counsel has relied on Moideen v.

Nabeesha [2007 (1) KHC 44] and Sunitha Kachwaha and R.P.(F.C) No. 135 of 2016

others v. Anil Kachwaha [2014 KHC 4690] to rest his

contention raised as above. It has been held by a Single Bench of

this Court in Moideen that permanent residence at two different

places cannot be reckoned to be living together. Husband who

permanently reside and work at far off places like places of

employment abroad or distant cities in India cannot certainly

successfully contend under Section 125 Cr.P.C that the wife

should reside at his parental home or alongwith his relatives

with no prospect of his visiting her and living with her on a

permanent or regular basis.

7. In Sunitha Kachwaha the Apex Court has held as

follows :

" Proceeding under Section 125 Cr.P.C is summary in nature. In a proceeding under S.125 Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant wife and the respondent and observing that the appellant wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of appellant wife and the factual findings, as recorded by the Family Court. Inability to maintain herself is the precondition R.P.(F.C) No. 135 of 2016

for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband's economic condition is quite good, the wife would be entitled to maintenance." (Emphasis supplied)

8. The learned counsel for the respondent on the contrary

has contended that the Family Court is perfectly justified in

passing the impugned order, declining the claim of the 1 st

petitioner for maintenance after finding that she has refused to

live with her husband without a valid reason. According to him,

under sub-section(4) of Section 125 Cr.P.C, three grounds are

provided which disentitles the wife from receiving the monthly

maintenance and expenses of proceedings ordered by the Court

in her favour and the husband on successfully establishing any of

those is entitled to get the order cancelled. According to him,

refusal of the wife to live with the respondent without a valid

reason is one among the grounds enumerated under sub-

section(4) of Section 125 and on proving that successfully, the

wife would be disentitled to receive the allowance of monthly R.P.(F.C) No. 135 of 2016

maintenance and expenses of proceedings stand ordered by the

Family Court under sub-section(1) of Section 125 in her favour.

9. It is clear from the evidence of the 1 st petitioner as PW1

that she has been inconsistent in giving reasons for her stay

away from the respondent. In view of the inconsistency involved

in her version about the reason that causes her to refuse the

offer of the respondent to stay alongwith itself, her credibility is

doubted and it can be held that for no valid reasons she refused

to live with the husband. According to him, the Family Court has

rightly found in the impugned order that the petitioner has no

valid reason for her stay away from the respondent and therefore

is not entitled to get maintenance under Section 125 Cr.PC.

According to him, the revision petition is only to be dismissed.

10. The dictum in Moideen supra is totally irrelevant for

consideration in the case on hand. In the light of the argument

advanced by the learned counsel for the revision petitioner and

on the basis of the dictum laid down by the Apex Court in

Sunitha Kachwaha, supra this Court is inclined to hold that the

claim for monthly maintenance of a wife under Section 125 Cr.P.C

is only liable to be allowed when she successfully establishes the R.P.(F.C) No. 135 of 2016

three factors enumerated thereunder, viz the neglect of the

respondent to maintain her, her inability to sustain herself and

the sufficiency in the earning of the respondent to maintain her.

As held in Sunitha Kachwaha, supra a wife as claimant must

plead in her petition specifically the above three factors and must

adduce evidence to substantiate.

11. It is incumbent upon this Court in the context to see

whether the 1st petitioner had made specific pleadings of the

nature in the petition seeking monthly maintenance. It is

pertinent to note from a scrutiny of the pleadings raised in the

petition that a specific plea has been raised to the effect that the

respondent neglected to pay maintenance to the petitioners. A

plea was also found taken to the effect that the 1 st petitioner is

unemployed. The further plea taken was that the respondent is

working as Supervisor in Dubai and his monthly income is

Rs.1,00,000/-. Therefore, it is clear that positive pleadings with

reference to the three factors for sustaining a claim under

Section 125 Cr.P.C have been taken by the 1 st petitioner. Then

the question comes whether the 1st petitioner has established the

above pleadings with cogent and reliable evidence. It has been R.P.(F.C) No. 135 of 2016

deposed by the 1st petitioner as PW1 that the respondent

neglected to maintain herself from 2013 onwards. Oral evidence

has also been adduced by the 1 st petitioner as PW1 to the effect

that the respondent was working abroad at the time of marriage

and was earning sufficient income. PW1 has also stated during

cross examination that the respondent is also doing business in

gold ornaments. It is stated by her that she has no idea about

the place wherein the respondent was working and has not seen

any documents disclosing his salary. But, the oral evidence

tendered by PW1 regarding the job of the respondent abroad, his

business in gold ornaments and the income earned therefrom are

not controverted by the respondent.

12. The respondent had taken a contention that though he

was working abroad at the time of marriage, he abandoned the

job and returned to his native place. He had also taken a

contention that he does not have Rs.1,00,000/- as monthly

income as averred by the 1st petitioner. His specific contention

was that he is working only as a goldsmith and his monthly

income at the relevant time is Rs.10,000/-. It was further

contended that the age old mother who is suffering from various R.P.(F.C) No. 135 of 2016

ailments was also maintained by him. He has also stated that

while working abroad, his salary was 750 Dirhams and 200

Dirhams is kept apart for meeting his personal expenses.

13. Though contentions have been raised as above, the

respondent did not tender oral evidence to substantiate those.

Therefore, there is absolutely no evidence controverting the

evidence adduced by the 1st petitioner as PW1. Admittedly the

respondent was working at Gulf and had a salary of 750 Dirhams

at the relevant time. Evidence is totally lacking to establish the

abandonment of the job abroad. Though the respondent has

stated that he is working as a goldsmith and his monthly income

at the relevant time of filing of M.C is only Rs.10,000/-, he failed

to adduce any evidence in that regard. The claim that the

respondent that he has abandoned his job abroad after sometime

of the marriage and started to do business in gold ornaments

wherefrom he gets only as Rs.10,000/-, being factors within his

personal knowledge, he has to establish those. When evidence

in that regard is totally lacking, nothing prevents the court from

taking adverse inference on the sufficiency in the earning of the

respondent. When the 1st petitioner's pleading that the R.P.(F.C) No. 135 of 2016

respondent was working abroad and was getting Rs.1,00,000/-

was not successfully controverted by the respondent by

producing relevant materials establishing on the contrary, there

is every reason for the court to take a view that the respondent

is a man having sufficient income. Therefore, the 1 st petitioner

can also be taken to have successfully established that the

respondent is having sufficient income.

14. The 1st petitioner as PW1 has deposed before the court

below that she was unemployed and has no income of her own.

The respondent has denied the pleading of the 1 st petitioner that

he neglected to maintain herself and the children from 2013.

But the respondent in his counter statement has contended that

since the 1st petitioner was living separated from him without a

reason, she is not entitled to get maintenance. Therefore from

the said pleading of the respondent itself, it is established that

he has neglected to maintain the petitioners. Therefore, the

averment of the 1st petitioner that the respondent neglected

to maintain herself and the children from 2013 can also be

taken to have established.

R.P.(F.C) No. 135 of 2016

15. Therefore, as rightly held by the apex Court in Sunitha

Kachwaha supra, the relevant factors to sustain the claim for

monthly maintenance under sub-section(1) of Section 125 Cr.P.C

have been established by the 1st petitioner. The contention

raised by the respondent that the 1 st petitioner refuses to live

with him without a valid reason is not one liable to be pleaded

and established by a wife for obtaining monthly maintenance

from her husband under Section 125 Cr.P.C. It is something

meant to be taken after passing of an order granting monthly

maintenance and expenses of proceedings under sub-section(1)

of Section 125 Cr.P.C. Such a contention if taken and

established, by a husband after passing of the order granting

maintenance, it would disentitle the petitioner from receiving the

allowance of monthly maintenance or interim maintenance as the

case may be and also the expenses of proceedings as ordered by

the Court in her favour. Therefore, the grounds that the 1 st

petitioner is living in adultery or refuses to live with her husband

without sufficient reason or that they are living separately by

mutual consent are liable to be taken by the husband only for

getting an order passed in favour of the wife, under R.P.(F.C) No. 135 of 2016

sub-section(1) of Section 125 Cr.P.C, cancelled. The position is

all the more clear from a reading of sub-section(5) of Section

125 Cr.P.C and therefore is extracted hereunder :

"(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

16. The Family Court is totally unjustified in passing the

impugned order declining the claim of the 1 st petitioner for

monthly maintenance and dismissing the M.C to that extent.

Therefore, the impugned order to the extent it dismisses the M.C

and declines to grant monthly maintenance to the 1 st petitioner is

liable to be set aside.

In the result, the revision is allowed. The impugned order

passed in the M.C to the extent it dismisses the claim of the 1 st

petitioner for maintenance is reversed. The 1 st petitioner is found

entitled to get monthly maintenance under sub-section(1) of

Section 125 Cr.P.C. For fixation of the quantum of monthly

maintenance payable in favour of the 1 st petitioner, the M.C is