Kerala High Court
C.K.Fathima vs M.P.Hamsakoya on 27 October, 2023
1
RP(FC)No.100 of 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
RPFC NO. 100 OF 2014
AGAINST THE ORDER/JUDGMENT MC 204/2012 OF FAMILY
COURT,KOZHIKODE
REVISION PETITIONER/S:
C.K.FATHIMA
D/O.C.K.HUSSAIN, THADAYIL HOUSE, VENNAKKODE P.O.,
MALAYAMMA, CHATHAMANGALAM AMSOM, MALAYAMMA DESOM,
KOZHIKODE DISTRICT-673514.
BY ADV SRI.SUNNY MATHEW
RESPONDENT/S:
M.P.HAMSAKOYA
S/O.KUNHAYIN, NOUFIRA MANZIL, MANKAVU, KOZHIKODE
DISTRICT-673007.
BY ADVS.
K.S.ARUN KUMAR
VIJAY SANKAR V.H.
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2
RP(FC)No.100 of 2014
C. S. DIAS, J.
-------------------------
RP(FC)No.100 of 2014
-------------------------
Dated this the 27th day of October, 2023
ORDER
The revision petition is filed assailing the order
passed by the Family Court, Kozhikode, in M.C
204/2012 dismissing the revision petitioner's petition
filed under Sec.125 of the Code of Criminal Procedure
(in short, "Code"), for an order of maintenance from
the respondent. The revision petitioner was the
petitioner and the respondent was the respondent
before the Family Court.
Brief facts
2. The revision petitioner had filed the petition
against the respondent seeking monthly maintenance
RP(FC)No.100 of 2014
allowance at the rate of 4,000/-. She contended that
she was married to the respondent on 14.11.1999. It
was the second marriage for both the revision
petitioner and the respondent. Four months after the
marriage, the respondent demanded for an additional
amount of Rs.35,000/- to give his former wife.
Thereafter, he ill-treated the revision petitioner. The
revision petitioner had earlier filed M.C No.209/2008
against the respondent for an order of maintenance. As
a counter-blast to the above proceeding, the respondent
had filed O.P. No.539/2008 before the same Court, for
a decree for restitution of conjugal rights. The Family
Court consolidated and jointly tried the two cases and
by its common order dismissed the maintenance case
filed by the revision petitioner and decreed the original
RP(FC)No.100 of 2014
petition filed by the respondent passing a decree of
restitution of conjugal rights. After the common order,
there was a mediation proceedings, wherein, the
respondent agreed to reside with the petitioner for two
days in a week and pay maintenance. On the basis of
the said understanding, the parties resumed
cohabitation. But, thereafter, the respondent failed to
live with the petitioner. Hence, he flouted the
understanding between the parties. The respondent is
doing bakery business and earning a monthly income
of Rs.35,000/-. In addition to the same, he is also
doing real estate business. The petitioner requires
Rs.4,000/- as monthly maintenance. Hence, the
petition.
RP(FC)No.100 of 2014
3. The respondent had filed a written objection
refuting the allegations in the petition. He contended
that despite the decree passed in O.P. No.539/2008, the
revision petitioner did not resume cohabitation. Her
earlier petition for maintenance, i.e., M.C 209/2008
was dismissed on merits. The said order was not
challenged. Later, she filed the present maintenance
case, which is not maintainable in law. Hence, the
petition may be dismissed.
4. The revision petitioner was examined as PW1
and the respondent marked Ext.B1 (copy of the order
passed by the Family Court, Kozhikode in
O.P.No.539/2008) in evidence. The Family Court,
after analyzing the pleadings and materials on record,
by the impugned order, dismissed the petition on the
RP(FC)No.100 of 2014
ground that there was no change in the circumstances
from the earlier order passed in M.C 209/2008.
Assailing the said order, the present revision petition is
filed.
5. Heard; Sri.Sunny Mathew, the learned counsel
appearing for the revision petitioner and Sri.K.S Arun
Kumar, the learned counsel appearing for the
respondent.
6. Is there any illegality, impropriety or
irregularity in the impugned order passed by the
Family Court?
7. On an appreciation of the pleadings and
materials on record, it is seen that the revision
petitioner had earlier filed M.C 209/2008, against the
respondent, for an order of maintenance and the
RP(FC)No.100 of 2014
respondent had filed O.P. No.539/2008, for a decree for
restitution of conjugal rights, on the assertion that the
revision petitioner was living separately without
sufficient cause. The Family Court consolidated and
jointly tried both the proceedings and by its common
order, dismissed the petition filed by the revision
petitioner and decreed the original petition filed by the
respondent passing a decree of restitution of conjugal
rights.
8. Admittedly, the revision petitioner has not
challenged the order in M.C 209/2008 or the decree in
O.P.No.539/2008. Thus, the matter has attained finality
so far as the finding that the revision petitioner was
living separately without sufficient cause. It is without
challenging the said order that the revision petitioner
RP(FC)No.100 of 2014
subsequently filed M.C 204/2012 against the order of
maintenance.
9. The fifth proviso to Section 125 of the Code
specifically prescribes that, if the wife refuses to live
with the husband, then the husband is not liable to pay
maintenance to the wife.
10. In the case on hand, indisputably, despite the
above decree passed by the Family Court, the revision
petitioner has refused to resume cohabitation with the
respondent. Likewise, her earlier petition for the
similar relief was dismissed in view of the decree
passed in O.P.No.539/2008. It is with the above
findings against her, that she filed the present petition
on the allegation that, there was a subsequent
mediation talk wherein the respondent agreed to
RP(FC)No.100 of 2014
resume cohabitation with her, but he resiled from his
undertaking. Therefore, there is a change of
circumstances and the respondent is liable to pay
maintenance allowance to the revision petitioner.
11. On a re-consideration of the pleadings and
materials placed on record, it is seen that there is
absolutely no material to substantiate the assertion
regarding the mediation talk, understanding and
subsequent change of circumstances alleged in the
petition.
12. The Family Court has rightly concluded that
the revision petitioner has not made out any change of
circumstances as contemplated under Sec.127 of the
Code to seek for alteration/modification of the earlier
order passed in M.C No.209/2008.
RP(FC)No.100 of 2014
13. After bestowing my anxious consideration to
the materials placed on record, I do not find any error,
illegality or impropriety in the impugned order passed
by the Family Court warranting interference by this
Court. Nonetheless, if there is any change of
circumstances, it would be up to the revision petitioner
to invoke her statutory remedy as provided under
Sec.127 of the Code.
The revision petition is meritless and is resultantly,
dismissed.
Sd/-
sks/27.10.23 C.S.DIAS, JUDGE
