Savina K.K vs Preejith V
2021 Latest Caselaw 17851 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MRS. JUSTICE MARY JOSEPH
 WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                     RPFC NO. 41 OF 2017
 AGAINST THE JUDGMENT DATED 14.10.2016 IN MC NO.156/2015 OF
                  FAMILY COURT, THALASSERY.


REVISION PETITIONER/1ST PETITIONER:

          SAVINA K.K.
          AGED 28 YEARS
          D/O.RAJAN, AGED 28 YEARS, THAYYIL HOUSE,
          NIRMALAGIRI P.O., MANGATTIDAM AMSOM, KANDERI DESOM,
          KANNUR DISTRICT-670701

          BY ADVS.
          SRI.C.P.PEETHAMBARAN
          SMT.MINI.V.A.

RESPONDENT/RESPONDENT:

          PREEJITH V.
          AGED 32 YEARS
          S/O.PRAKASHAN, VADAKKEKAREMMAL HOUSE, 117
          VATTIPROM, MANGATTIDAM AMSOM, VATTIPROM DESOM,
          THALASSERY TALUK, KANNUR DISTRICT-670643

          BY ADVS.
          SMT.RENY ANTO
          SRI.SIJU KAMALASANAN


    THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
08.12.2020, THE COURT ON 01.09.2021 PASSED THE FOLLOWING:
 RPFC.No.41/2017                        2




                          MARY JOSEPH, J.
                ------------------------
                       R.P.(FC) No. 41 of 2017
                ------------------------
              Dated this the 01st day of September, 2021


                                     ORDER

The revision on hand is filed by the wife, who is the 1 st

petitioner, in M.C No.156/2015 on the files of Family Court,

Thalassery. M.C was tried alongwith Original Petition seeking for

restitution of conjugal rights.

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

hereinafter be referred to as petitioners 1 and 2 and the respondent

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

3. Common evidence was adduced in the M.C and O.P and

on appreciation of evidence, the Family Court found that the 1 st

petitioner is not entitled to get monthly maintenance allowance

from the respondent and the M.C was dismissed in respect of her

claim and the 2nd and 3rd petitioners were found entitled to get

monthly maintenance and awarded Rs.3,000/- and Rs.2,000/-

respectively in their favour. Against the order declining the claim

for maintenance of the 1st petitioner, the revision on hand is filed.

4. Sri.C.P. Peethambaran, the learned counsel for the

petitioners has contended that the Family Court has gone wrong in

declining the claim of the 1 st petitioner for maintenance. According

to him, cogent evidence was not adduced by the respondent before

the Family Court to establish the factum that the 1 st petitioner was

working in a beauty parlour and was earning income sufficient to

sustain her livelihood. Solely for the reason that notice issued to

the 1st petitioner in the address of a beauty parlour was delivered

there, the Family Court has drawn an inference that the 1 st

petitioner was working there and earning income. According to

her, the impugned order suffers for the reason and interference is

called for.

5. Sri.Siju Kamalasanan, the learned counsel for the

respondent has contended that the 1st petitioner was working and

was earning sufficient income and therefore, the Family Court was

justified in dismissing her claim for maintenance. According to

him, in the common judgment passed a decree for restitution of

conjugal right was granted in his favour, for the reason established

that the 1st petitioner had left his company without a valid and

justifiable reason. According to the learned counsel, the impugned

judgment does not call for interference.

6. This Court had a glance at the impugned judgment. It

is found therefrom that before the Family Court, status of the 1 st

petitioner as wife and the 2nd and the 3rd petitioners as children

were not disputed by the respondent. What was averred in the

petition was that she was unable to maintain herself. The

respondent has raised a contention in the counter statement filed

in the M.C that the 1st petitioner was working in a beauty parlour

and was earning income for sustaining her livelihood. But the

respondent failed to adduce any cogent evidence to substantiate

that contention. Going by paragraph 14 of the impugned order, it is

found that the Family Court had noticed from Ext.A1 notice that it

was served in the address furnished. Family Court has also noticed

from the endorcement made in Ext.A1 that it was received by the

petitioner herself. While being cross examined as RW1, she has

stated that since it was informed by the owner of the beauty parlour

about the notification, she went to the post office and collected the

postal article. Family Court has observed that the above aspects did

not find place either in the petition seeking maintenance or in the

counter statement filed in O.P No.634/2015. Even after observing

so, the Family Court has found that the factum of receipt of Ext.A1

notice by the respondent in the address of the beauty parlour is

sufficient to hold that she is working in a beauty parlour and

earning income and therefore, she is not entitled to claim

maintenance.

7. This Court finds that the reasoning of the Family Court is

incorrect. Under Section 125 Cr.P.C, a wife is entitled to claim

maintenance only on establishing her inability to maintain herself.

In the case on hand, the 1st petitioner as wife has taken a contention

that she is unable to maintain herself and therefore the petition

seeking maintenance was filed. The respondent has taken a

contention in his counter statement that the 1st petitioner is

working in a beauty parlour and earning sufficient income to

maintain herself and therefore, is not entitled to claim

maintenance from him. Despite raising such a contention, the

respondent failed to adduce cogent evidence to establish it. If a

husband denies the claim of the wife that she is unable to maintain

herself, the burden is strictly upon him to adduce reliable evidence

to establish it. Here, the husband did not even attempt to establish

the factum and the Family Court has suo moto reached a

conclusion from service of notice on the petitioner in the address of

the beauty parlour that she is employed there and capable of

maintaining herself with the income earned therefrom.

8. Apart from the above, yet another contention was also

raised by the respondent before the Family Court that the 1 st

petitioner had left his company without a valid and justifiable

reason. The respondent did not adduce any cogent evidence even to

establish the factum. But, the Family Court had taken the

weakness of the 1st petitioner to negate the contention as basis for

arriving at a finding that the 1st petitioner is not entitled to get

maintenance from the respondent.

9. When something is destined by law of evidence to be

established by a party who asserts it, on his failure to discharge that

burden, the court shall not take the burden to reach a finding on

the assertion of the party on its own. From the evidence adduced

by the 1st petitioner, it has come to the effect that a case has been

registered against the respondent under Section 498A IPC at her

instance and that is pending consideration. If that be so, definitely,

a contention may be taken therein that the respondent or his

family members had treated her with cruelty either for demand of

more dowry or for gold ornaments. The Family Court failed to

advert to the said factum also while appreciating the evidence.

10. In the above circumstances, this Court finds that the 1 st

petitioner was declined with maintenance and the petition filed by

her seeking monthly maintenance allowance was dismissed

without adverting to the evidence on record in the correct

perspective. This Court finds that an interference is required in the

matter for the reasons enumerated above and therefore, the

impugned judgment to the extent it dismisses the claim of the 1 st

petitioner for monthly maintenance allowance in M.C

No.156/2015 of Family Court, Thalassery is set aside.

In the result, R.P.(F.C) stands allowed in part. The impugned

order to the extent it declined the relief sought by the 1 st petitioner

for monthly maintenance allowance in M.C No.156/2015 of Family

Court, Thalassery stands set aside. The findings in the M.C relating

to the claim of maintenance of the 2 nd and 3rd petitioners are

maintained. The Family Court, Thalassery on receipt of the order

shall restore M.C No.156/2015 on its file and decide on the issue

whether the 1st petitioner is entitled to get maintenance after a

proper appreciation of the evidence on record. The parties to the

M.C shall appear before the Family Court, Thalassery for the above

purpose on 08.11.2021. The M.C being of the year 2015, the Family

Court, Thalassery shall see that the same is taken up, considered

and disposed of within a period of two months from the date of

appearance of the parties before the Family Court on that day.

Sd/-

MARY JOSEPH

JUDGE

JJ