Anita Simon vs Simon Rajan
2023 Latest Caselaw 1401 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MRS. JUSTICE MARY JOSEPH
  FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                      RPFC NO. 250 OF 2021
AGAINST THE COMMON   ORDER DATED 15.01.2021 IN CMP NO.24/2020 AND
CMP NO.37/2020 IN MC.NO.56/2015 OF THE    FAMILY COURT, ALAPPUZHA


REVISION PETITIONER/RESPONDENT IN CMP NO.24/2020/PETITIONER IN
CMP NO.37/2020

          ANITA SIMON,
          AGED 62 YEARS,
          D/O LATE P.K.KOSHY, RESIDING AT ANUGRAHA,
          EAST OF CONVENT SQUARE,
          CULLEN ROAD, ALAPPUZHA-688001.

          BY ADV.SMT.BINDU SREEKUMAR


RESPONDENT/PETITIONER IN CMP 24/2020/RESPONDENT IN CMP 37/2020

          SIMON RAJAN,
          AGED 65 YEARS,
          S/O LATE P.S.RAJAN, 10TH FLOOR, SKYLINE RIVERVILIE,
          THOTTUMUKHAM, CHALAKKAL,
          ALUVA, ERNAKULAM-683105.

          BY ADVS.SMT.GISA SUSAN THOMAS
                  SMT.ANJANA G.
                  SMT.JOBIN JOSE P.


     THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 16.01.2023, THE COURT ON 20.01.2023 PASSED THE FOLLOWING:
 R.P.(F.C) No.250 of 2021                  -:2:-




                            MARY JOSEPH, J.
                 -----------------------
                       R.P(F.C) No. 250 of 2021
                 -----------------------
                Dated this the 20th day of January, 2023


                                     ORDER

The respondent in the M.C. challenged the order passed ex

parte in M.C.No.56/2015 in a revision filed before this Court as

R.P(F.C)No. 255/17 and obtained an order setting aside the same

in his favour. Thereafter the matter was settled based on the

undertaking by the respondent to pay Rs.15,000/- monthly to

the petitioner. The petitioner demanded for enhancement of the

sum and as conceded by the respondent the monthly

maintenance allowance was enhanced to Rs.20,000/-. Thereafter

the respondent stopped paying the monthly maintenance

allowance and thereupon the petitioner filed C.M.P.No.37/2020

on 08.07.2020 to enforce payment of Rs.60,000/- due then as

arrears of maintenance allowance from the respondent.

2. Respondent filed C.M.P.No.24/2020 on 18.05.2020 for

cancellation of the order granting maintenance allowance at an

enhanced rate of Rs.20,000/- projecting his incapacity to earn

any income on account of the injuries sustained in an accident

occurred on 14.02.2020. According to him, he is 65 years and

was maintained by his son who was deserted by him in the year

1994, at his age of 11 years and now working as a lawyer at

Bangkok. The respondent had filed a Matrimonial Suit as 3/1998

before the High Court of Calcutta and a judgment was passed on

03.02.1999 dissolving the marriage. Petitioner then filed

O.S.No.84/1998 seeking maintenance allowance and return of

money, but that was dismissed due to the failure of the petitioner

to establish the claims raised under those.

3. Petitioner also filed objection in C.M.P.No.24/2020

raising contentions that she has no source of income and is solely

depending on the maintenance allowance stands ordered in her

favour and paid to her for sustenance. According to her the

details of the injuries allegedly sustained by the respondent are

not furnished. The respondent is alleged as immensely rich and

had obtained Rs.16,38,805/- as benefits while returning from Air

India as a Senior Pilot. He allegedly is continuing as an

Instructor in an Aeronautical Engineering Institution and was

earning a total income of Rs.50,00,000/- from various sources

including landed properties. It was further contended that the

mental and physical cruelty extended to her by the respondent

caused her to leave his company and out of the mental condition

she was driven to, she could not pursue with the matrimonial

litigation initiated by her husband and those culminated in

passing ex parte orders and decrees even for divorce, against

her.

4. C.M.P.No.37/2020 was filed on 08.07.2020 to realise a

sum of Rs.60,000/- as arrears outstanding to be paid as monthly

maintenance allowance alleging that the evasion to pay it was

willful. Issuance of a warrant against the respondent to compel

the payment of the arrears was also sought.

5. The grievance projected by the learned counsel on

behalf of the petitioner was that a common order was passed by

Family Court, Alappuzha in both C.M.Ps, though no evidence was

adduced by the husband to establish the change in circumstances

raised in the petitions.

6. For clarity, parties to this revision will hereinafter be

referred to as the petitioner and the respondent in accordance with

their status in the original M.C.

7. According to the learned counsel for the petitioner, the

Family Court failed to conduct an enquiry into the claim of the

respondent about his alleged incapacity to earn any income

following the motor accident met with by him and therefore, is

unjustified. According to her, she was denied with opportunity to

cross examine the respondent on the claims made by him and

to adduce independent evidence to disprove those. According to

her, the impugned order suffers for non-conduct of an enquiry by

the court on the allegations.

8. According to her, the Family Court ought not to have

rejected the claim of the petitioner for some extraneous reasons

and irrelevant considerations. According to her opportunity was

denied to the petitioner to cross examine the respondent and the

documents produced by the respondent were allowed to be

marked in evidence without an opportunity being granted

to the petitioner to challenge those in cross examination.

According to her, Family Court dismissed C.M.P No.37/2020 filed

by the petitioner seeking for enforcement of the payment of

arrears of monthly maintenance allowance relying on certain

documents produced by the respondent without an opportunity

being provided to the petitioner to cross examine based on

those. Therefore, the Family Court is highly erred and unjustified

in arriving at a finding that change in circumstances alleged by

the respondent were established and passing the impugned order

modifying the original order passed on the basis of consensus of

both parties. The Family Court ought to have found that the

husband cannot be absolved from his responsibility to maintain

the wife who was abandoned without sufficient reasons and to

provide her with adequate maintenance allowance, unless

satisfactory evidence is adduced to substantiate that the wife is

disentitled to receive monthly maintenance allowance due to

changes in circumstances occurred in his life.

9. According to the learned counsel, Section 127 of the

Code of Criminal Procedure, 1973 (for short 'Cr.P.C') provides for

the change in circumstances, which empowers a Court that

passed an order under Section 125(1) Cr.P.C to cancel or vary the

same. According to her under Section 127(1) Cr.P.C the court is

not empowered to cancel an order passed by it, but only vary it.

According to her none of the reasons contemplated under Section

127(1) Cr.P.C are available in the case of the petitioner to pass an

order cancelling the original order granting monthly maintenance

allowance. According to her, passing of the impugned common

order amounts to denial of justice to the petitioner and therefore,

it needs to be reversed.

10. It is pertinent to note that Family Court, Alappuzha

passed the impugned common order without having a proper

idea about Sections 125 (1) and 127(1) Cr.P.C.

11. Chapter IX Cr.P.C provides for passing of an Order for

maintenance of wives, children and parents. Section 125(1)

Cr.P.C provides for the categories of people who are entitled to

get an order granting monthly maintenance allowance. For

getting such an order the categories of people enumerated in the

provision have to establish that the person allegedly responsible

to maintain themselves are having sufficient means but willfully

neglects or refuses to maintain them. I st proviso to Section 125

(1) Cr.P.C provides for certain exceptional circumstances wherein

a major married daughter is entitled to get maintenance

allowance from her father, provided her husband is proved to

have no sufficient means.

Explanation to Section 125 (1) Cr.P.C. Provides:

"(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried."

Sub Section (3) of Section 125 Cr.P.C. provides as follows:

"(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as

the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."

12. It is indicated from the provision extracted supra that

an order granting monthly maintenance allowance is enforceable

only against a person found liable to pay it and the person

against whom the order was passed, fails without sufficient cause

to comply with the order. Therefore, if a sufficient cause is there

for the failure of the husband who has been directed to pay the

maintenance allowance, the order is not liable to be executed

against him. Therefore, what is envisaged by the provision was

that Family Court is empowered to cancel the order provided the

husband is successful in convincing the court that sufficient

reason which prevents or incapacitates him from paying the

maintenance allowance stands ordered in favour of his wife,

exists in his case.

13. Section 127 (1) Cr.P.C. being relevant in the context is

also extracted.

It reads:-

"127. Alteration in allowance.-(1) On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be."

14. True that the heading only speaks about alteration of

the order granting monthly maintenance allowance. Sub-Section

(1) of Section 127 Cr.P.C. speaks about alteration of an order

granting monthly maintenance allowance on a change in

circumstances being proved convincingly.

15. The Code in Sub-section (2) of Section 127 Cr.P.C.

provides for the circumstances in which a court is empowered to

pass an order cancelling the order granting monthly maintenance

allowance and those are:

(1) Decision of a competent civil court making the husband not liable to pay it.

(2) Re-marriage by a divorced wife (3) a divorced husband who has received the whole of the sum payable to her under the personal or customary law applicable to the parties. (4) a divorced wife if she has voluntarily surrendered her rights to maintenance or interim maintenance as the case may be.

16. In the above circumstances, Family Court which

passed an order under Section 125 (1) Cr.P.C is empowered to

pass an order of cancellation of an order granting monthly

maintenance allowance. The importance lies on the fact that

when a court is approached to cancel an order passed by it, the

party applying for cancellation must adduce cogent evidence to

convincingly establish the change in circumstances upon which

her claim for cancellation rests. The opposite side must also be

granted with reasonable opportunity to contest the claim by

cross examining the party who applied for that and also to

adduce contra evidence liable to defeat the claim for cancellation.

Section 127 Cr.P.C. itself starts with the words 'on proof of a

change in the circumstances'. (Emphasis supplied)

17. Therefore, it is incumbent upon the party applying for

cancellation of an order passed under Section 125 (1) Cr.P.C. to

establish that change in circumstances liable to cancel an order

exists. It is the duty of the court to conduct an enquiry into the

alleged change in circumstances to be convinced of the veracity

of the claim.

18. In the case on hand, the change in circumstances

projected by the respondent was that he met with an accident

and in view of the injuries sustained, he is incapacitated to earn

income and to meet the payment of the monthly maintenance

allowance stands ordered against him. The court below failed to

conduct an enquiry into the claim of incapacity projected before it

by him. Rather, it blindly relied on the proof affidavit filed by

him and the documents produced, without a reasonable

opportunity being provided to the petitioner to cross examine

him on the basis of the contentions raised in the counter

statement duly filed in the application seeking for cancellation.

Since the respondent did not mount the box, the right of the

petitioner to cross examine him was denied.

19. This Court finds that there is clear cut violation of the

directions contained in Section 127 (1) Cr.P.C. by Family Court,

Alappuzha. Resultantly, the impugned order suffers for illegality,

impropriety and infirmity, which this Court is bound to correct.

The impugned common order is liable to be set aside for the

reasons.

20. In the result, revision is allowed and the impugned

common order is set aside.

21. Family Court, Alappuzha shall permit both parties to

CMP.Nos.37/2020 and 24/2020 to adduce evidence as they

intend. The Family Court shall conduct an enquiry into the claim

raised by the respondent and the petitioner shall make use of the

opportunity to cross examine the respondent on the basis of the

contentions raised in the counter statement filed by her.

CMPs are remitted to Family Court, Alappuzha for fresh

consideration and passing of a fresh order. The parties shall

appear before Family Court, Alappuzha on 22.02.2023. At any

rate, consideration and passing of fresh orders cannot go beyond

two months from the date of appearance of the parties.

Sd/-

MARY JOSEPH JUDGE

NAB

APPENDIX OF RPFC 250/2021

PETITIONER'S ANNEXURES:

ANNEXURE A CERTIFIED COPY OF THE JUDGMENT IN M.C 56/2015 DATED 24.8.2017.

ANNEXURE B CERTIFIED COPY OF THE COMMON ORDER IN CMP NO.24/20 AND CMP.37/20 IN MC NO.56/2015 DATED 15.1.21 PASSED BY THE FAMILY COURT, ALAPPUZHA.

RESPONDENT'S ANNEXURES: NIL

TRUE COPY

PA TO JUDGE