Dineshan C. K vs Sudha V. P
2021 Latest Caselaw 19692 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MRS. JUSTICE MARY JOSEPH
         FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                              RPFC NO. 89 OF 2021
 AGAINST THE ORDER/JUDGMENT DATED 09.12.2020 IN MC NO.306/2019 OF FAMILY
                              COURT, THALASSERY.


REVISION PETITIONER/RESPONDENT:

             DINESHAN C. K.,
             S/O. KELU,
             AGED 46 YEARS,
             CHEMBU KUZHIYIL HOUSE, CHETTAKKANDI P. O., THRIPPANGOTTUR,
             CHETTAKKANDI, THALASSERY TALUK, KANNUR DISTRICT.

             BY ADV K.DILIP


RESPONDENT/PETITIONER:

     1       SUDHA V. P.,
             W/O.DINESAN C. K.,
             AGED 37 YEARS,
             KUNINGAT HOUSE (SOORYODAYAM),
             KALLIKANDI P. O., THRIPPANGOTTUR,
             THALASSERY TALUK, KANNUR DISTRICT - 670693.
     2       JANISRIYA DINESH,
             D/O.DINESAN C. K., (MINOR),
             AGED 16 YEARS,
             REP. BY SUDHA V. P., W/O.DINESAN C. K.,
             AGED 37 YEARS, KUNINGAT HOUSE (SOORYODAYAM),
             KALLIKANDI P. O., THRIPPANGOTTUR, THALASSERY TALUK,
             KANNUR DISTRICT - 670693.
     3       THANMAYA DINESH,
             D/O.DINESAN C. K., (MINOR),
             AGED 7 YEARS,
             REP. BY SUDHA V. P.,
             W/O.DINESAN C. K.,
             AGED 37 YEARS, KUNINGAT HOUSE (SOORYODAYAM),
             KALLIKANDI P. O., THRIPPANGOTTUR,
             THALASSERY TALUK, KANNUR DISTRICT - 670693.

             BY ADVS.
             SRI.VINODKUMAR CHAMBALON
             SMT.BINDUMOL JOSEPH
             SRI.B.S.SYAMANTHAK

     THIS   REV.PETITION(FAMILY    COURT)    HAVING   COME   UP   FOR   ORDERS   ON
17.09.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 RPFC No.89 of 2021                2




                              ORDER

Dated this the 17th day of September, 2021.

The final order passed by Family Court, Thalassery

(for short, 'the court below') in M.C No.306 of 2019 is

assailed in the revision on hand. The contention of the

learned counsel for the revision petitioner was that

though documentary evidence have been adduced, the

court below failed to discuss on those in the impugned

order. The court below has passed the impugned order

strictly based on the oral evidence of the parties.

2. The parties to this revision are referred to

hereinafter as petitioners 1 to 3 and respondent in

accordance with their status in the M.C.

3. It is pertinent to note that as per the averment

of the 1st petitioner in the M.C, the respondent is a

Contractor and is earning sufficient income. It is further

averred by the 1st petitioner that the respondent failed to

maintain them and therefore, the court was approached

for fixation of the monthly maintenance allowance payable

to them. The specific case of the 1 st petitioner was that

she was unemployed and unable to maintain herself. She

has produced certain fee receipts and those were marked

in evidence.

4. The contention of the respondent was that he

was a Contractor but the outbreak of Covid-19 pandemic,

has impacted his work adversely and therefore his income

has been considerably reduced. He was getting only

Rs.10,000/- as monthly income. According to him, the 1 st

petitioner at the relevant time was getting minimum of

Rs.10,000/- from Employment Guarantee Scheme.

5. This Court also noticed from a glance at the

judgment that discussion is not made in the impugned

judgment regarding the documentary evidence stands

adduced. The Apex Court had directed in Rajnesh Vs.

Neha and Another [2020 (6) KHC 1] that both parties

must file affidavits with respect to their monthly income

and the assets so as to enable the court to reach a finding

on the capacity of either parties, for the petitioner to

maintain herself and for the respondent to pay monthly

maintenance allowance to the petitioners. It is pertinent

to note from the evidence on record that affidavits as

directed have not been filed by the parties in the

maintenance case. Therefore, solely based on the oral

evidence adduced by the parties that the court below

entered into a finding that the respondent is capable

financially and liable to pay monthly maintenance

allowance at the rate of Rs.5,000/- to 1 st petitioner and

Rs.4,000/- each to petitioners 2 and 3.

6. The direction issued in Rajnesh's case supra

ought to have been complied with by the parties in a

maintenance case and and the court below is also obliged

to call for those from the parties, in case of their failure.

In the M.C, parties failed to adduce evidence in

supportive of their contentions. The order is also silent

about the evidence already on record. The court below

failed to advert to the dictum in Rajnesh's case also.

Filing of an affidavit ought to have been insisted by the

court in the context of the claim raised by the respondent

that he is still a Contractor but only earning Rs.10,000/-

monthly. Therefore, it appears to this Court that the court

below has gone wrong in passing the impugned order and

it is only to be set aside.

In the result, R.P.(F.C) is allowed and the impugned

order is set aside. The court below shall restore the M.C

back to its file and obtain affidavits from both parties

regarding their income and assets. On filing of the

affidavits as aforesaid, the court below shall pass

appropriate orders in the M.C, not later than two months

from the date of receipt of a certified copy of this order by

it.

Sd/-

MARY JOSEPH

JUDGE JJ/-