Sri.Velayudhan Nadarajan vs Smt.Jessy V.Rajan
2023 Latest Caselaw 10930 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
    THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                          RPFC NO. 415 OF 2014
         AGAINST THE ORDER/JUDGMENT MC 119/2008 OF FAMILY
                        COURT,THIRUVANANTHAPURAM
REVISION PETITIONER/S:

          SRI.VELAYUDHAN NADARAJAN, AGED 59 YEARS,
          S/O LATE SRI NADARAJAN PANICKER, FORMERLY RESIDING AT
          PADMA, NARUMVAMOODU P.O, THIRUVANANTHAPURAM AND NOW AT
          MEENA VIHAR, AMPONTHALAVILAI, MADICHAL P.O, VIA
          KUZHITHURAI, VALAVANCODE VILLAGE, KANYAKUMARI DISTRICT,
          TAMIL NADU

          BY ADVS.
          SRI.ANIL S.RAJ
          SMT.ANILA PETER
          SMT.C.PRABITHA
          SMT.K.N.RAJANI
          SRI.J.VIVEK GEORGE



RESPONDENT/S:

    1     SMT.JESSY V.RAJAN
          AGED 48 YEARS
          D/O SMT. THANKAMMA THOMAS, RESIDING AT MEENA VIHAR
          AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI,
          VALAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU,
          NOW RESIDING AT GNS 116, GANDHI NAGAR, VAZHUTHACUAD,
          THIRUVANANTHAPURAM 695014

    2     MS. MEENA V RAJAN
          AGED 18 YEARS
          D/O SRI VELAYUDHAN NADARAJAN, RESIDING AT MEENA VIHAR
          AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI,
          VALAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU,
          NOW RESIDING AT GNS 116, GANDHI NAGAR, VAZHUTHACUAD,
          THIRUVANANTHAPURAM 695014

    3     MEERA V RAJAN MINOR
          AGED 17 YEARS
          D/O SRI VELAYUDHAN NADARAJAN, RESIDING AT MEENA VIHAR
          AMPONTHALAVILAI, MADICHAL P.O, VIA KUZHITHURAI,
          VALAVANCODE VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU,
 RPFC NO. 415 OF 2014

                                   2

               NOW RESIDING AT GNS 116, GANDHI NAGAR,
               VAZHUTHACUAD, THIRUVANANTHAPURAM 695014

    4          MAHIMA V. RAJAN
               AGED 14 YEARS
               D/O SRI VELAYUDHAN NADARAJAN, RESIDING AT MEENA
               VIHAR AMPONTHALAVILAI, MADICHAL P.O, VIA
               KUZHITHURAI, VALAVANCODE VILLAGE, KANYAKUMARI
               DISTRICT, TAMIL NADU, NOW RESIDING AT GNS 116,
               GANDHI NAGAR, VAZHUTHACUAD, THIRUVANANTHAPURAM
               695014

               BY ADVS.
               SMT.R.BINDU
               SRI.HARISH GOPINATH
               SRI.JOHNSON JOSE PANJIKKARAN
               SRI.R.S.KALKURA
               SRI.M.S.KALESH




        THIS    REV.PETITION(FAMILY      COURT)    HAVING   COME   UP   FOR
ADMISSION       ON   26.10.2023,   THE     COURT    ON   THE   SAME     DAY
DELIVERED THE FOLLOWING:
 RPFC NO. 415 OF 2014

                               3

           (Dated this the 26th day of October, 2023)

                             ORDER

The revision petition is filed challenging the order

in M.C.No.119/2008 of the Family Court,

Thiruvananthapuram directing the revision petitioner to

pay maintenance at the rate of Rs.3,500/- per month

each to the respondents - his wife and three daughters.

The revision petitioner was the respondent and the

respondents were the petitioners in the above petition

before the Family Court.

2. The respondents filed the above petition under

Section 125 of the Code of Criminal Procedure (in

short, 'Code'), inter-alia, stating that the 1 st respondent

is the wife of the revision petitioner and the

respondents 2 to 4 are the daughters born in the

wedlock. The revision petitioner is employed as an

Assistant Executive Engineer in the PWD and drawing a

monthly salary of Rs.30,000/-. The revision petitioner

was living with other women and refused to maintain RPFC NO. 415 OF 2014

the respondents. He threatened the respondents,

compelling them to leave the matrimonial home. The

revision petitioner misappropriated the property of the

1st respondent. The respondents have no means for

their sustenance. Despite having sufficient means, the

revision petitioner refused to maintain the respondents.

Hence, the petition.

3. The revision petitioner filed a written objection ,

inter-alia, denying his marriage with the 1 st respondent.

His principal defence is that he is physically

handicapped and is suffering from chronic active

hepatitis and other ailments. He only has a net monthly

income of Rs.4,355/-. He has filed OP(G&W)

No.693/2008, for the permanent custody of his

daughters. Hence, the petition may be dismissed.

4. The 1st respondent got herself examined as PW1

and marked Exts.P1 to P9 in evidence. The revision

petitioner did not let in any evidence. RPFC NO. 415 OF 2014

5. The Family Court, after analysing the pleadings

and materials on record, by the impugned order, partly

allowed the petition by directing the revision petitioner

to pay monthly maintenance to the respondents at

Rs.3,500/- each from 02.07.2008 till the 1 st respondent

continues to be his wife and till the respondents 2 to 4

complete their studies up to the graduation level.

6. Aggrieved by the order, the revision petition is

filed.

7. Although the revision petition was admitted on

02.12.2014, this Court has not stayed the operation of

the order.

8. Heard; Smt.Rajani K.M., the learned Counsel

appearing for the revision petitioner and

Sri.R.S.Kalkura, the learned Counsel appearing for the

respondents.

9. The learned Counsel appearing for the revision

petitioner submitted that the revision petitioner did not RPFC NO. 415 OF 2014

get sufficient opportunity to contest the petition before

the Family Court, therefore, he could not let in evidence

at the trial stage. Moreover, the respondents 2 to 4

have attained majority and are now well placed in life.

Hence, the revision petitioner's liability to maintain

them has come to an end. Hence, this Court may set

aside the impugned order and remand the matter back

to the court below to afford the revision petitioner an

opportunity to contest the case on its merits.

10. The learned Counsel appearing for the

respondents submitted that despite numerous

opportunity given to the revision petitioner, he

deliberately did not mount the box and let in any

evidence. Moreover, the maintenance order was passed

more than a decade back. At this point of time, it would

be a travesty of justice to remit the matter back to the

Family Court for facilitating the revision petitioner an

opportunity to contest the case on merits. The revision

petition is meritless and may be dismissed. RPFC NO. 415 OF 2014

11. Is there any illegality, irregularity and

impropriety in the impugned order ?

12. The respondents filed the petition for an order

of maintenance allowance from the revision petitioner

on the ground that he is the husband of the 1 st

respondent and the father of the respondents 2 to 4.

13. Even though the revision petitioner disputed

his marriage with the 1st respondent, he has admitted

the paternity of the respondents 2 to 4 and that they

are born in his relationship with the 1st respondent.

Moreover, he has filed OP(G&W) No.693/2008 before

the same Court, for the permanent custody of the

children. In his written objection to the petition he has

conceded to maintain the respondents 2 to 4 @

Rs.1,000/- each per month.

14. Indisputably, though the revision petitioner

filed his written objection in the petition, for reasons

best known to him, he refused to mount the box. RPFC NO. 415 OF 2014

Therefore, his defence is not corroborated by any

material. On the contrary, the 1st respondent examined

herself as PW1 and proved Exts.P1 to P9.

15. Section 125 of the Code is envisaged for the

purpose of a man to maintain his wife, children and

parents. Other than for the bald assertion in the written

objection, that there was no valid marriage between

the revision petitioner and the 1 st respondent, there is

cogent material to prove the allegation. Yet, in the same

breath the revision petitioner has conceded that he is

the father of the respondents 2 to 4, who are born in his

relationship with the 1st respondent. Therefore, I am of

the definite view that the contention of the revision

petitioner that there was no marriage between him and

the 1st respondent is imputed only for the purpose of

wriggling out of his statutory liability to maintain his

wife. The Family Court has rightly concluded that the

1st respondent is the wife of the revision petitioner. It is

nigh well-settled that the long co-habitation is sufficient RPFC NO. 415 OF 2014

to prove marriage in a summary proceeding under

Section 125 of the Code.

16. Admittedly, the revision petitioner was

employed as an Assistant Executive Engineer in the

PWD. He contended that he was getting only a net

salary of Rs.4,355/- per month. But, he did not produce

any document to prove his income.

17. Section 103 of the Indian Evidence Act casts

the burden on the person who wishes the Court to

believe the existence of a particular fact. As the

revision petitioner failed to produce any material to

prove his income adverse inference is to be drawn

against him and the contention of the respondents that

he is earning an amount of Rs.30,000/- per month is to

be accepted.

18. The 1st respondent's case is that the revision

petitioner treated her with matrimonial cruelty which

compelled her to leave with her children to her parental RPFC NO. 415 OF 2014

home. The materials on record show that the three

daughters were pursuing their studies. It was in the

above background that the Family Court deemed it fit

and proper to order the revision petitioner to pay

maintenance at the rate of Rs.3,500/- each to the

respondents.

19. In Bhuwan Mohan Singh vs. Meena &

others [(2015) 6 SCC 353], the Honourable Supreme

Court has observed that Section 125 of the Code was

conceived to ameliorate the anguish, agony and

financial sufferings of wife and children who force to

leave the matrimonial home. The concept of

sustenance does not mean to lead the life of an animal,

feel like an unperson to be thrown away from grace but

to lead a life in the status and position as that of the

husband/wife.

20. Recently in Anju Garg & another vs. Deepak

Kumar Garg [2022 LiveLaw (SC) (805)] the RPFC NO. 415 OF 2014

Honourable Supreme Court has held that an able

bodied person is bound to maintain his wife and

children.

21. In the case on hand, undisputedly, the revision

petitioner is an Engineer by profession and was

employed in the PWD as an Assistant Executive

Engineer. It is taking into account the revision

petitioner's status and background the Family Court

fixed the monthly maintenance allowance of the

respondents @ Rs.3,500/-. I do not find any error,

illegality or impropriety in the impugned order passed

by the Family Court warranting interference by this

Court by exercising its revisional jurisdiction. It would

be a mockery of justice, at this point of time, to remit

the matter back to the Family Court to afford the

revision petition an opportunity to contest the case. The

revision petitioner did not even file an application to set

aside the ex-parte order instead rushed to this Court. If

at all he has a case that the respondents 2 to 4 have RPFC NO. 415 OF 2014

attained majority and are well placed in life now, it

would be up to him to move the Family Court under

Section 127 (1) of the Code and seek for

alteration/cancellation of the impugned order and not

aspire for any interference by this court on his mere

asking without there being any illegality in the order.

The revision petition sans substance or merits.

Resultantly, the revision petition is dismissed,

without prejudice to the right of the revision petitioner

to seek for modification of the impugned order under

Section 127 of the Code. If such a petition is filed, the

Family court shall consider and dispose of the same in

accordance with law.

Sd/-

C.S.DIAS JUDGE rkc/26.10.23