Kerala High Court
Baiju vs Baiju on 20 January, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942
RPFC.No.238 OF 2016
AGAINST THE COMMON JUDGMENT IN MC NO.309/2013 DATED 21-03-2016 OF
FAMILY COURT, ATTINGAL
NAME AND ADDRESS OF THE REVISION PETITIONER/RESPONDENT:
BAIJU,
S/O. SASIDHARAN, VETTUKATTIL VEEDU, KULAMUTTOM,
MANAMBOOR VILLAGE, CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.O.D.SIVADAS
SMT.ANITHA MATHAI MUTHIRENTHY
NAME AND ADDRESS OF THE RESPONDENTS/PETITIONERS:
1 DIVYA,
D/O. MOHANAN, DIVYA BHAVAN, PALAMKONAM,
PERUMKULAM P.O., ALAMCODE, MANAMBOOR
VILLAGE,CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT.
2 RICHA,
AGED 6 YEARS, MINOR RESIDING AT DIVYA
BHAVAN,PALAMKONAM, PERUMKULAM P.O.,
ALAMCODE,MANAMBOOR VILLAGE, CHIRAYINKIL TALUK,
THIRUVANANTHAPURAM DISTRICT.REPRESENTED BY MOTHER IST
RESPONDENT.
BY ADV. SRI.LATHEESH SEBASTIAN
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
20-01-2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RPFC.No.238 OF 2016 2
ORDER
Dated this the 20th day of January, 2021 The revision on hand is filed against the common judgment passed by Family Court, Attingal on 21.03.2016 in M.C.No.309 of 2013. The revision petitioner is the respondent in the M.C. M.C was filed under Section 125 Cr.P.C. seeking for monthly maintenance allowance at the rate of Rs.7,000/- to the 1 st petitioner and Rs.6,000/- to the 2nd petitioner. The M.C. was considered alongwith O.P.No.1438 of 2013 filed by the husband seeking for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, O.P.No.402 of 2014 is filed by the wife seeking for a decree for dissolution of marriage under Section 13(1) (ia) of the Hindu Marriage Act and O.P.No.1464 of 2013 filed for return of money and gold ornaments under Section 7 of the Family Courts Act. Therefore, evidence was adduced in the M.C. in common with the above O.Ps.
2. For the sake of clarity, the parties to this revision will hereinafter be referred to as the respondent and petitioners 1 and 2 in accordance with their status in the M.C. before the Family Court.
RPFC.No.238 OF 2016 3
3. The Family Court has appreciated the evidence in the M.C. and allowed the same and directed the respondent to pay Rs.5,000/- each as monthly maintenance allowance to the 1 st and 2nd petitioners. The respondent is aggrieved by the order granting monthly maintenance allowance to the extent of claim of the petitioners itself and therefore filed the revision on hand.
4. Sri.O.D.Sivadas, the learned counsel for the respondent has contended that the rate of monthly maintenance ordered by the Family Court by the impugned order is excessive and reduction by way of modification is required. According to him it has come out in evidence before the Family Court that the respondent himself has been remitting the educational expenses of the 2 nd petitioner at the school and that has been admitted by the 1 st petitioner also. According to him, it has also come out in evidence that cash to the extent of Rs.25,00,000/- has been withdrawn from the account of the respondent by the 1 st petitioner and in the said circumstances, the monthly maintenance allowance ordered as Rs.5,000/- each to petitioners is excessive.
5. The learned counsel for the petitioners has contended that Ext.A7, the Salary Advice of the respondent produced before the Family Court and formed part of record of evidence would RPFC.No.238 OF 2016 4 show that the respondent was earning 656.25 Saudi Riyals from his occupation in a company abroad. According to her when the respondent was getting salary to that extent, the Family Court is perfectly justified in ordering monthly maintenance allowance at the rates of Rs.5,000/- each to the petitioners. According to the learned counsel, interference with the impugned order is not called for, for the reasons.
6. This Court has gone into the pleadings and evidence. It has been pleaded by the 1 st petitioner before the Family Court that the respondent was working in a company abroad and was getting a higher sum as salary. It has also been pleaded by the 1 st petitioner that she was unemployed and unable to maintain herself and the minor child. Admittedly, Rs.25,00,000/- has been withdrawn by her from the account of the respondent during the period 2007-08 and it was utilised for various purposes like payment of premium towards insurance and other allied expenses. M.C. was filed in the year 2013 and taking due consideration of it, the impugned judgment was passed in the year 2016. Therefore, the withdrawal of the amount during the period 2007-08 cannot form a reason to deny payment of monthly maintenance allowance contemplated under Section 125 Cr.P.C to RPFC.No.238 OF 2016 5 petitioners 1 and 2. Admittedly of the 1 st petitioner educational expenses of the 2nd petitioner were met with by the respondent. But by production and marking of Ext.A7 in evidence, the respondent has proved that he was working in a company abroad and was getting 656.25 Saudi Riyals monthly. It has not come out in evidence that the respondent was a man suffering from any ailments or ill health. Therefore, when the respondent was proved as a man having sufficient monthly income, and also having good health, he cannot evade from his legal obligation to maintain his wife and child neglected by him. Family Court has ordered Rs.5,000/- each in their favour as monthly maintenance allowance. In the backdrop of the discussion made on the evidence as above, this Court finds that the rates of monthly maintenance allowance ordered by the Family Court are just and reasonable.
7. It is submitted by the learned counsel that Rs.3,000/- and Rs.2,500/- respectively directed to be paid to petitioners 1 and 2 by interim order passed on 08.06.2016 have already been paid. But absolutely no evidence is adduced to establish the sum already paid by the respondent towards the interim maintenance allowance ordered by this Court. However, this Court is inclined RPFC.No.238 OF 2016 6 to observe that if any amount has already been paid by the respondent towards the interim maintenance allowance ordered by this Court, that must be credited in the amount payable as monthly maintenance allowance by the impugned order.
Revision fails and is dismissed.
Sd/-
MARY JOSEPH JUDGE MJL