Lidiya Thomas vs Siju Kuriachan
2021 Latest Caselaw 524 Ker

             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. 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

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

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

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

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

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