Kerala High Court
Sony Philip vs Jain Mathew on 21 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
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
RPFC NO. 382 OF 2023
AGAINST THE JUDGMENT DATED 15.12.2022 IN MC 49/2018 OF FAMILY
COURT, PALA
REVISION PETITIONER/RESPONDENT:
SONY PHILIP ,
AGED 44 YEARS,
S/O PHILLIP, PICHATTU HOUSE,
MANNADISALA P. O, KOLLAMULA VILLAGE,
RANNI TALUK, PATTANAMTHITTA DISTRICT,
PIN - 686511
BY ADVS. KISHOR B.
M.M.LAIJU NISSA
RESPONDENT/PETITIONER:
JAIN MATHEW,
AGED 38 YEARS,
D/O MATHEW, THAZHATHUKUNNEL HOUSE,
EDAMATTOM. P. O, POOVARANY VILLAGE,
MEENACHIL TALUK, 686578.
BY ADVS. THOMAS J ANAKKALLUNKAL .
ANUPA ANNA JOSE KANDOTH(K/427/2007)
JAYARAMAN S.(K/1244/2019)
MELBA MARY SANTHOSH(K/001148/2023)
THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 21.12.2023, ALONG WITH RPFC.509/2023, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
R.P.(FC)Nos.382 & 509/2023
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
RPFC NO. 509 OF 2023
AGAINST THE JUDGMENT DATED 15.12.2022 IN MC 49/2018 OF FAMILY
COURT, PALA
REVISION PETITIONER/RESPONDENT:
JAIN MATHEW,
AGED 34 YEARS,
D/O. MATHEW, THAZHATHUKUNNEL HOUSE,
EDAMATTOM PO, EDAMATTOM KARA,
POOVARANY VILLAGE, MEENACHIL TALUK,
KOTTAYAM, PIN - 686578
BY ADVS. THOMAS J.ANAKKALLUNKAL
JAYARAMAN S.
ANUPA ANNA JOSE KANDOTH
RESPONDENT/PETITIONER:
SONY PHILIP,
AGED 40 YEARS,
S/O. PHILIP, PICHANATTU HOUSE,
MANNADISALA PO, KOLLAMULA VILAGE,
RANNI TALUK, PATHANAMTHITTA,
PIN - 686511
THIS REV. PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 21.12.2023, ALONG WITH RPFC.382/2023, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
R.P.(FC)Nos.382 & 509/2023
-:3:-
Dated this the 21st day of December, 2023
COMMON ORDER
As these revision petitions are filed challenging
the order in M.C.No.49/2018 of the Family Court, Pala,
directing the husband to pay the wife monthly
maintenance allowance @ Rs.3,500/- from the date of
application(06.07.2018), they are being disposed of by
this common order. R.P.(FC)No.382/2023 is filed by the
husband assailing the impugned order and R.P.
(FC)No.509/2023 is filed by the wife, dissatisfied with
the quantum of maintenance ordered. For convenience,
the parties are referred to as the 'revision
petitioner/husband' and 'respondent - wife'.
2. The respondent/wife had filed the application
under Section 125 of the Code of Criminal
Procedure,1973 ('Code', for the sake of brevity),
against the revision petitioner/husband, seeking
monthly maintenance allowance @ Rs.20,000/-. It was
R.P.(FC)Nos.382 & 509/2023
her case that, she was married to the revision
petitioner on 16.05.2013. They are issueless. The
revision petitioner treated her with matrimonial
cruelty. She has no means to maintain herself. The
revision petitioner is a construction contractor and has
five acres of agricultural land, and he is earning a
monthly income of Rs.80,000/-. The respondent has a
right to live in the same status and standard of living
as that of the revision petitioner. Hence, the
application.
3. The revision petitioner had filed a written
objection refuting the allegations in the application.
He denied the allegation that he was working as a
construction contractor. He contended that he was
doing some private work and earning Rs.20,000/- per
month. He was living in a rental premises by paying
Rs.8,000/- per month as rent. The revision petitioner
is ready to resume cohabitation with the respondent.
R.P.(FC)Nos.382 & 509/2023
Hence, the application may be dismissed.
4. The respondent had also filed
O.P.Nos.326/2018 & 327/2018 against the revision
petitioner, for a decree for divorce and a decree for
return of money and gold ornaments, respectively.
5. The Family Court consolidated and jointly
tried the three proceedings. The respondent examined
herself and two other witnesses as PWs 1 to 3 and
marked Exts A1 to A9 in evidence. The revision
petitioner got himself examined as RW1 and marked
Exts B1 to B27 on his side.
6. The Family Court, after analysing the
pleadings and materials on record, by the impugned
order, partly allowed the application, by ordering the
revision petitioner to pay the respondent monthly
maintenance allowance @ Rs.3,500/-.
7. It is assailing the said order, these revision
petitions are filed.
R.P.(FC)Nos.382 & 509/2023
8. Heard; Sri. Kishor B, the learned counsel
appearing for the revision petitioner/husband and Sri.
Thomas J.Anakkallunkal, the learned counsel appearing
for the respondent/ wife.
9. Is there any illegality, impropriety or
irregularity in the impugned order?
10. The revision petitioner admits his marriage
with the respondent. The respondent's case in the
application was that, the revision petitioner had
treated her with matrimonial cruelty and refused to
maintain her, despite having a monthly income of
Rs.80,000/-.
11. The revision petitioner's defence was that the
respondent was living separately from him without
sufficient cause and he was only earning Rs.20,000/-
per month from his private work.
12. Even though the revision petitioner
contended that the respondent was living separately
R.P.(FC)Nos.382 & 509/2023
from him without any sufficient cause, admittedly, he
had not taken any earnest effort to resume
cohabitation with the respondent. He also did not file
any petition seeking decree for restitution of conjugal
rights. Similarly, though the respondent contended
that the revision petitioner was earning Rs.80,000/- per
month, there is nothing on record to prove the said
assertion.
13. The Family Court, taking into account the fact
that the revision petitioner was only 39 years at the
time of filing the application and was an able bodied
person ordered him to pay Rs.3,500/- per month to the
respondent.
14. 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 dependant wives and children for
R.P.(FC)Nos.382 & 509/2023
their financial support, so as to prevent them from
falling into destitution and vagrancy.
15. 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.
16. 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, and the
R.P.(FC)Nos.382 & 509/2023
husband is required to earn money even by physical
labour, if he is able bodied and could not avoid his
obligation, except on any legally permissible ground
mentioned in the statute.
17. It is well settled that the Courts are
permitted to do some guesswork in arriving at the
notional income of the husband/father and fixing the
quantum of maintenance.
18. As already observed, the revision petitioner
was aged 39 years at the time of filing of the
application. There is nothing on record to prove that
the revision petitioner was suffering from any bodily
ailment or disability. Therefore, I am of the definite
view that the revision petitioner is an able bodied
person. An able bodied person in the year 2017, by any
stretch of imagination, would have earned nothing less
than Rs.800/- per day for at least 25 days in a month.
Therefore, I fix the notional income of the revision
R.P.(FC)Nos.382 & 509/2023
petitioner @ Rs.20,000/- per month. Taking into
account the notional income of the revision petitioner
at Rs.20,000/- per month, I find the amount of
Rs.3,500/- ordered by the Family Court to be
reasonable and justifiable. I do not find any error or
impropriety in the quantum of maintenance fixed by
the Family Court.
19. On an overall consideration of the pleadings
and materials on record, I do not find any illegality or
irregularity in the impugned order warranting
interference by this Court under Section 19(4) of the
Family Courts Act, 1984. The revision petitions are
meritless and are only liable to be dismissed.
Resultantly, the revision petitions are dismissed.
The revision petitioner is directed to pay the entire
arrears of maintenance due to the respondent as per
the impugned order in three equated and successive
monthly instalments commencing from 21.01.2024. If
R.P.(FC)Nos.382 & 509/2023
the revision petitioner fails to pay one of the
instalments, the respondent would be at liberty to
execute the impugned order in accordance with law.
Sd/-
C.S.DIAS,JUDGE
DST/21.12.23 //True copy//
P.A. To Judge
