Kerala High Court
Smitha P.S vs Jinesh Kumar T.D on 14 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 14TH DAY OF JUNE 2022/24TH JYAISHTA, 1944
R.P.(F.C.) NO.603 OF 2016
(AGAINST THE ORDER DATED 30.08.2016 IN MC 107/2015
OF FAMILY COURT, MUVATTUPUZHA)
REVISION PETITIONERS/PETITIONERS:
1 SMITHA P.S, AGED 36 YEARS, D/O.SEKHARAN,
IKKARAKUDY HOUSE, THRIKKALATHOOR P.O,
MULAVOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM.
2 ACHU (MINOR), AGED 4 YEARS, D/O.JINESH KUMAR,
RESIDING AT IKKARAKUDY HOUSE,
THRIKKALATHOOR P.O, MULAVOOR,
REPRESENTED BY HER MOTHER AND NATURAL GAURDIAN
SMITHA P.S, AGED 36 YEARS, D/O.SEKHARAN,
IKKARAKUDY HOUSE, THRIKKALATHOOR P.O,
MULAVOOR VILLAGE, MUVATTUPUZHA, ERNAKULAM.
BY ADVS.
SRI.GEO PAUL
SRI.S.ASHOK KUMAR.
SRI.LENIN P. SUKUMARAN
KUM.LAYA MARY JOSEPH
SRI.C.R.PRAMOD
SRI.RADHIKA RAJASEKHARAN P.
SRI.SANU MATHEW
SRI.K.S.SREENATH
SRI.SOHAIL MOHAMMED ANSARY
RESPONDENT/RESPONDENT IN M.C.No.107/2015:
JINESH KUMAR T.D., AGED 44 YEARS,
S/O.DAMODARAN, THURUTHIKKATTU HOUSE,
POONJAR, THEKKEKKARA P.O, MEENACHIL TALUK,
KOTTAYAM, PIN 686 582.
BY ADV SRI.C.S.SUNIL
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RP(F.C.)No.603 of 2016
2
ORDER
(Dated: 14th June, 2022)
The 1st petitioner/wife in M.C.No.107 of 2015 on
the file of the Family Court, Muvattupuzha who was
denied maintenance by the Family Court has filed this
petition.
2. The respondent was the 1st respondent before
the Family Court. The marriage between the 1 st
petitioner and the respondent was solemnised on
27.03.2006 at the residence of the 1 st petitioner at
Thrikkalathoor, Muvattupuzha. A daughter born in the
wedlock on 29.05.2011. After the marriage, the
petitioner and the respondent resided together in the
house of the respondent. From the very beginning of the
marital life, the respondent ill-treated the
petitioner. Due to continuous mental torture, the 1 st
child of the petitioner died immediately after birth.
Though the disputes between the petitioner and the
RP(F.C.)No.603 of 2016
respondent were settled amicably, the respondent again
started torturing, hence on 08.02.2015, the
petitioner's parents brought back her from the
matrimonial home. The petitioner and the respondent are
living separately and the respondent is not maintaining
the petitioner and the child, who is residing with the
petitioner, hence she claimed maintenance at the rate
of Rs.5,000/- and Rs.3,000/- respectively by filing M.C
before the Family Court, Muvattupuzha. She has no other
income to maintain herself and the child and the
respondent being a goldsmith is earning Rs.20,000/- per
month.
3. The respondent filed objection contending that
the 1st petitioner has left the matrimonial home on
08.02.2015 with the child accompanying her parents, on
her own volition. Thereafter, the petitioner has not
returned back. The respondent is not working as a
goldsmith now and the amount claimed is exorbitant. He
is now working as an assistant of an electrician, and
RP(F.C.)No.603 of 2016
earning a meager income. The 1 st petitioner is a
qualified computer operator and she is earning. The
respondent is ready to maintain the petitioners, if
they live with the respondent in his residence.
4. The evidence consisted of oral evidence of PWs
1 to 3 and RW1. On the side of the petitioners Exts.A1
and A2 series were marked and Exts.B1 to B3 were marked
on the respondent's side. The Family Court tried this
case along with O.P.No.291 of 2015 and passed an order
directing the respondent to pay Rs.3,000/- each per
month to the 2nd petitioner/child alone and denied
maintenance to the 1 st petitioner/wife. Aggrieved by the
denial of maintenance to the 1 st petitioner, this
revision is filed.
5. Since 08.02.2015, the petitioner and the
respondent are residing separately. It is true that no
specific reason is stated in the petition for separate
residence. The contention of the respondent/husband is
that, without justifiable reason, the 1 st petitioner has
RP(F.C.)No.603 of 2016
left him and living separately with the child. Though a
specific question was asked in the cross examination of
PW1 that she is living separately without any
justifiable reason she denied the same. PW2 is the
mother of the 1st petitioner. When she was examined, she
submitted that the 1 st child died immediately after
delivery due to the harassment meted out by the
respondent and her in-laws. The respondent was examined
as RW1. His specific contention is that, he knows the
work of making gold ornaments. He denied the fact that
he is well versed in wiring jobs, but admitted that he
used to go along with electricians. His further case is
that, since he has got the problem with 'hernia' is not
able to go for jobs. When PW1 was examined, she
submitted that the respondent used to make quarrel with
her for various reasons and she was harassed mentally
also. In cross examination, she deposed that on
08.02.2015, she has left the matrimonial home and
before that she has filed a complaint before the
RP(F.C.)No.603 of 2016
Erattupetta Police regarding the ill-treatment. In a
mediation conducted at the police station, she again
started to live with the respondent. The main
allegation in the police complaint is that, the mother
of the respondent has assaulted her.
6. Ext.B1 is a piece of paper signed by the
petitioner's father, wherein it is stated that, 'he is
taking his daughter along with child'. The Family Court
heavily relied on Ext.B1, to come to the conclusion
that it is on her own volition that she has left the
home. Ext.B1 will only show that the 1 st petitioner was
taken by her father as on her request on the previous
day. It has also come out in evidence that a complaint
was filed before the police station alleging assault
from the mother-in-law and harassment from her husband.
From the complaint as well as from the accompanying
circumstances, it can be seen that, the 1 st petitioner
has left the matrimonial home on 08.02.2015 for
justifiable reasons. The finding of the Family Court
RP(F.C.)No.603 of 2016
that, it is on her own volition she has left the home
is improper.
7. The counsel for the petitioner/wife relied on
the decision of the Apex Court in Sunita Kachwaha and
Others v. Anil Kachwaha [2014 (16) SCC 715], in which
the Apex Court in paragraph 8 has held, as follows:
"8. The proceeding under S.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".
In view of the settled position of law, I am of the
RP(F.C.)No.603 of 2016
opinion that the matter requires re-consideration by
the Family Court.
In the result, the appeal is allowed and the
judgment to the extent denies maintenance of the 1 st
petitioner is set aside and the matter is remitted to
the Family Court for fresh trial and decision de-novo.
The Family Court shall give opportunity to both the
parties to adduce further evidence if any and enter
into a finding, whether the 1 st petitioner is entitled
to maintenance. The Family Court shall dispose of the
M.C., as directed above at any rate, within a period of
six months from the date of receipt of the certified
copy of the judgment. Needless to say that, the Family
Court shall dispose of the case untrammelled by any of
the observations made in this judgment.
R.P.(F.C.) is allowed.
Sd/-
BASANT BALAJI, JUDGE
ss
