Kerala High Court
Abdul Nizar vs Sajeena on 8 November, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 8TH DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945
RPFC NO. 5 OF 2016
AGAINST THE ORDER DATED 12.12.2014 IN MC 158/2011 OF FAMILY
COURT,KOLLAM
REVISION PETITIONER/RESPONDENT:
ABDUL NIZAR,
AGED 39 YEARS,
S/O.MUHAMMED KUNJU,
NEDIYAVILA VEEDU, MYLAPUR CHERRI,
THAZHUTHALA VILLAGE, UMAYANALLOOR PO,
KOLLAM DISTRICT
BY ADV SRI.V.A.AJIVAS
RESPONDENTS/PETITIONERS:
1 SAJEENA,
AGED 30 YEARS,
D/O.JAMEELA,
VILAYIL PADINJATTATHIL,
MUYLAPUR CHERRI, THAZHUTHALA,
UMAYANALLOR PO,
KOLLAM DISTRICT 691589
2 MUHAMMED IQBAL,
S/O.SAJEENA, MINOR,
AGED 10 YEARS,
REPRESENTED BY THE GUARDIAN MOTHER FIRST RESPONDENT
VILAYIL PADINJATTATHIL,
MYLAPUR CHERRI, THAZHUTHALA,
UMAYANALLOR PO, KOLLAM DISTRICT 691589
3 MUHAMMED BILAL,
S/O.SAJEENA,MINOR,
AGED 8 YEARS,
REPRESENTED BY THE GUARDIAN MOTHER FIRST RESPONDENT
VILAYIL PADINJATTATHIL,
MYLAPUR CHERRI, THAZHUTHALA,
UMAYANALLOR PO,
KOLLAM DISTRICT 691589
BY ADV SRI.SAJU J PANICKER
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.P.(FC)No.5/2016
-:2:-
Dated this the 8th day of November,2023
ORDER
The revision petition is filed questioning the
legality and correctness of the order in
M.C.No.158/2011 of the Family Court, Kollam, ordering
the revision petitioner to pay monthly maintenance
allowance @ Rs.3,000/- each to the respondents - his
wife and two sons - from the date of petition
(30.06.2011). The revision petitioner was the
respondent and the respondents were the petitioners
before the Family Court.
Brief facts:
2. The respondents had filed the application
under Section 125 of the Code of Criminal
Procedure,1973 ('Code', for the sake of brevity),
seeking monthly maintenance allowance from the
R.P.(FC)No.5/2016
revision petitioner. It was their case that the first
respondent was married to the revision petitioner on
26.11.1998. The respondents 2 & 3 are the children
born in their wedlock. From 02.12.2007, the revision
petitioner has refused to maintain the respondents.
The respondents have no source or income for their
livelihood. The revision petitioner is doing business in
textiles and is also running a hotel, and is earning
Rs.45,000/- per month. The respondents require
Rs.5,000/- each per month for their maintenance.
Hence, the application.
3. The revision petitioner filed a written
objection, refuting the allegations in the application. It
was his case that he is not doing any business. At the
time of marriage, he was employed in the Gulf and
returned in December, 2007. The first respondent
misappropriated his earnings and has deserted him
without any sufficient cause. He has instituted
R.P.(FC)No.5/2016
O.P.No.398/2010 before the Family Court for recovery
of money. The application is filed as a counterblast to
the above proceeding. The first respondent has a
monthly agricultural income of Rs.30,000/-. She is also
getting rent from her buildings and interest from the
Fixed Deposits. She is employed as a saleswoman in a
textile shop and is earning Rs.15,000/- per month. The
revision petitioner is employed only as a supplier in a
hotel and is earning only Rs.100/- per day. The revision
petitioner is not in a position to maintain the
respondents. Hence, the application may be dismissed.
4. The first respondent was examined as PW1
and Exts P1 to P2(b) were marked on her side. The
revision petitioner examined himself and a witness as
CPWs 1 & 2 and marked Ext D1 in evidence.
5. The Family Court, after analysing the
pleadings and materials on record, by the impugned
order, partly allowed the application, by directing the
R.P.(FC)No.5/2016
revision petitioner to pay monthly maintenance
allowance to the respondents @ Rs.3,000/- each per
month.
6. Confronted with the said order; the revision
petition is filed.
7. Heard; Sri. Ajivass V.A., the learned counsel
appearing for the revision petitioner and Sri. Saju J.
Panicker, 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 first respondent and the paternity of the
respondents 2 & 3.
10. The respondents' case is that the revision
petitioner has deserted them and has refused to
maintain them since 02.12.2007, despite having
sufficient means. The respondents do not have any
R.P.(FC)No.5/2016
income for their livelihood. The revision petitioner is
doing business and is earning Rs.45,000/- per month.
The respondents require Rs.5,000/- each per month for
their maintenance.
11. The revision petitioner's defence was that the
first respondent misappropriated his properties and he
has filed a petition to recover the same. The first
respondent has agricultural income, rental income and
getting interest from her Fixed Deposits and, further,
she is working as a saleswoman in a textile shop and is
earning Rs.15,000/- per month. The revision petitioner
is only earning Rs.100/- per day. Therefore, he is not in
a position to maintain the respondents. Moreover, the
first respondent has deserted the revision petitioner
without sufficient cause.
12. 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
R.P.(FC)No.5/2016
have been enacted as a measure of social justice to
provide recourse to dependant wives and children for
their financial support, so as to prevent them from
falling into destitution and vagrancy.
13. 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.
14. 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
R.P.(FC)No.5/2016
sacrosanct duty of the husband to provide financial
support to the wife and minor children, husband was
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.
15. In the case on hand, the revision petitioner
has alleged that the first respondent has sufficient
income to maintain herself. However, he has failed to
produce any material to substantiate his assertion. On
the contrary, he contended that he is only working as a
supplier in a hotel run by his relative and is earning
Rs.100/- per day.
16. It is well-settled in a plethora of judgments
that, an able bodied person is bound to maintain his
wife and children and also Courts are permitted to do
some guesswork to arrive at the quantum of
maintenance.
R.P.(FC)No.5/2016
17. The Family Court, by the impugned order,
taking into account the fact that the respondents are
unable to maintain themselves and the respondents 2
& 3 are school going children, has fixed the monthly
maintenance allowance @ Rs.3,000/- each. I find the
quantum of maintenance to be reasonable and
justifiable.
18. 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 warranting interference by this Court
by exercising its revisional powers under Section 19(4)
of the Family Courts Act, 1964.
The revision petition is devoid of any merits and is
resultantly, dismissed. Needless to mention, if the
revision petitioner has deposited any amount, pursuant
to the interim order of this Court, he would be entitled
to adjust the deposited amount, while paying the
R.P.(FC)No.5/2016
arrears of maintenance as per the impugned order.
Sd/-
C.S.DIAS,JUDGE
DST/08.11.23 //True copy//
P.A. To Judge
