Kerala High Court

Helvin K. Davis vs Mariyat Jose on 15 December, 2023

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
   FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
                          RPFC NO. 52 OF 2016
        AGAINST THE ORDER/JUDGMENT MC 214/2012 OF FAMILY COURT,
                              IRINJALAKUDA
REVISION PETITIONER/S:

            HELVIN K. DAVIS
            S/O.DEVASSY, KANJIRAPARAMBIL HOSUE, KUTTUR VILLAGE,
            KUTTUR DESOM, TRISSUR DISTRICT.

            BY ADV SRI.T.N.MANOJ



RESPONDENT/S:

    1        MARIYAT JOSE
             D/O.JOSE T.A., THATTIL HOUSE, KUTTUR P.O., THRISSUR
             DISTRICT -680 317.

    2        DAVIS HELVIN K.
             AGED 8 YEARS
             MINOR, REPRESENTED BY MOTHER MARIYAT JOSE ---DO---DO.

    3        ANITTA HELVIN K.
             AGED 5 YEARS
             MINOR, REPRESENTED BY MOTHER MARIYAT JOSE ---DO---DO.

            BY ADV SRI.N.L.BITTO




     THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RPFC NO. 52 OF 2016
                                2

                             ORDER

The revision petition is filed questioning the legality

and correctness of the order in M.C.No.214/2012 of the

Family Court, Irinjalakuda, ordering the revision

petitioner to pay the 1st respondent monthly maintenance

allowance @ Rs.2,000/- from the date of application till

June 2014 and the respondents 2 and 3 monthly

maintenance allowance @ Rs.2,500/- each from the date

of application till June 2014 and, thereafter, @ Rs.2,000/-

each until further order. The revision petitioner was the

respondent and the respondents were petitioners before

the Family Court.

2. The respondents had filed the application under

Section 125(1) of the Code of Criminal Procedure (in

short, 'Code') against the revision petitioner, for monthly

maintenance allowance. It was their case that, the 1 st

respondent was married to the revision petitioner on

22.05.2005. The respondents 2 and 3 were born in their

wedlock. The revision petitioner had treated the 1 st

respondent with matrimonial cruelty and had RPFC NO. 52 OF 2016

misappropriated her patrimony. On 01.11.2011, father of

the revision petitioner attempted to assault the 1st

respondent. From then on, the respondents are residing

in the 1st respondent's Aunty's house at Kuttur. The

revision petitioner has refused to maintain the

respondents. They do not have any means to maintain

themselves. The revision petitioner is working as an

E.D.Mail Carrier in the Postal Department drawing a

salary of Rs.25,000/- per month. Therefore, the

respondents are entitled to monthly maintenance

allowance @ Rs.3,000/- each. Hence, the application.

3. The revision petitioner had filed his written

objection refuting the allegations in the application. He

contended that the 1st respondent left matrimonial home

on her own volition and without any sufficient cause. The

revision petitioner is ready to look after to the

respondents. He has filed a petition for a decree for

restitution of conjugal rights. The revision petitioner is

only drawing a monthly salary of Rs.6,427/-. He is already

paying Rs.500/- per month towards maintenance of the 1 st RPFC NO. 52 OF 2016

respondent. Hence, the application may be dismissed.

4. The 1st respondent was examined as PW1 and

Exts.A1 to A8 were marked through her in evidence. The

revision petitioner and two witnesses were examined as

RWs 1 to 3 and Exts.B1 to B14 were marked in evidence.

5. The Family Court, after analysing the pleadings

and materials on record, by the impugned order, partly

allowed the application as already observed above.

6. It is assailing the said order; the revision petition

is filed.

7. Heard; Sri.Manoj T.N., the learned Counsel

appearing for the revision petitioner and Sri.N.L.Bitto,

the learned Counsel appearing for the respondents.

8. Is there any illegality, impropriety or irregularity

in the impugned order ?

9. The revision petitioner admits his marriage with

the 1st respondent and does not dispute the paternity of

the respondents 2 and 3. Thus, the sole question for

determination is the quantum of maintenance fixed by the

Family Court.

RPFC NO. 52 OF 2016

10. The respondents' case in the application was that

although the revision petitioner was working as an

E.D.Mail Carrier in the Postal Department and was

drawing a salary of Rs.25,000/- per month, he had

willfully refused to maintain the respondents.

11. The revision petitioner's defence was that the 1 st

respondent was living separately from him without any

sufficient cause and, therefore, she was not entitled to

maintenance. Moreover, he was only drawing a salary of

Rs.6,427/- per month and he was paying Rs.500/- per

month as maintenance allowance to the 1st respondent.

12. In the trial, the 1st respondent admitted that she

had secured an employment in the Railway Department in

June 2014. The revision petitioner had produced Ext.B7

pay slip to prove that he was earning only Rs.7,800/- per

month.

13. Even though the revision petitioner contended

that he had filed a petition for a decree for restitution of

conjugal rights, there is nothing on record to prove that a

decree was passed in his favour. It is conceded by both RPFC NO. 52 OF 2016

sides that, the marriage between the couple was severed

by decree of divorce on mutual consent. Therefore, even

before the passing of the impugned order, the 1 st

respondent was the divorced wife of the revision

petitioner.

14. The Family Court, after analysing the pleadings

and materials on record, held that the 1 st respondent is

entitled to maintenance from the date of application till

June 2014, the date on which she secured the

employment, and the respondents 2 and 3 are entitled to

monthly maintenance allowance initially @ Rs.2,500/-

and, thereafter, @ Rs.2,000/- each per month.

15. On an appreciation of the pleadings and

materials on record, I do not find any error in the

quantum of maintenance awarded to the 1st respondent.

Nonetheless, I am of the view that the direction to pay

Rs.2,500/- per month to the respondents 2 and 3 till June

2014 and, thereafter, at Rs.2,000/- each is erroneous and

irrational. There is no reason stated in the order for the

above conclusion. Ext.P7 salary certificate shows that the RPFC NO. 52 OF 2016

revision petitioner was drawing Rs.7,500/- per month.

Therefore, I am of the view that, it would be reasonable

and justifiable to direct the revision petitioner to pay

monthly maintenance allowance to the respondents 2 and

3 @ Rs.2,000/-, from the date of application until further

orders.

16. The learned Counsel appearing for the revision

petitioner argued that, the 2nd respondent will attain

majority in April 2024. If that be the case, it would be

open to the revision petitioner to move the Family Court

at the appropriate stage and seek for the cancellation of

the order as against the 2nd respondent, under Section

127 of the Code.

17. In the celebrated decision in Rajnesh v. Neha

and Anr. [2020 (6) KHC 1], the Hon'ble Supreme Court

has held that the Maintenance laws have been enacted as

a measure of social justice to provide recourse to

dependent wives and children for their financial support,

so as to prevent them from falling into destitution and

vagrancy.

RPFC NO. 52 OF 2016

18. In Captain Ramesh Chander Kaushal v.

Veena Kaushal & Ors. [(1978) 4 SCC 70], the Hon'ble

Supreme Court has declared that the provision of

maintenance is a measure of social justice and specially

enacted to protect women and children, who fall within

the constitutional sweep of Article 15(3) and reinforced

by Article 39.

19. In Bhuwan Mohan Singh v. Meena & Ors.

[(2015) 6 SCC 353], the Hon'ble Supreme Court has

observed that Section 125 of the Code was conceived to

ameliorate the agony, anguish, financial suffering of a

woman who left her matrimonial home, so that some

suitable arrangements could be made to enable her to

sustain herself and the children, since it is the sacrosanct

duty of the husband to provide financial support to the

wife and minor children.

20. On an overall consideration of the pleadings and

materials on record and the law on the point, I do not find

any illegality, impropriety or irregularity in the impugned

order, except for the finding rendered above as regards RPFC NO. 52 OF 2016

the quantum of maintenance payable to respondents 2

and 3, warranting interference by this Court under

Section 19(4) of the Family Courts Act, 1984.

21. Resultantly, the revision petition is partly allowed

as follows:

(i) The impugned order passed in favour of the 1 st

respondent is confirmed.

(ii) The monthly maintenance allowance granted to

the respondents 2 and 3 @ Rs.2,500/- each from

the date of application till June 2014, is modified

and reduced, by ordering the revision petitioner

to pay the respondents 2 and 3 monthly

maintenance allowance @ Rs.2,000/- from the

date of application until further orders.

(iii) If the revision petitioner has deposited any

amount, pursuant to the interim orders of this

Court, he would be entitled to adjust the

deposited amount while calculating the arrears of

maintenance payable to the respondents.


(iv)    Needless to mention, the parties would be at
 RPFC NO. 52 OF 2016


      liberty   to    move   the   Family    Court,   for

      alteration/modification/cancellation      of    the