Kerala High Court
Sreeja S. Nair vs K.A.Manoj on 16 January, 2020
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 16TH DAY OF JANUARY 2020 / 26TH POUSHA, 1941
RPFC.No.1 OF 2014
AGAINST THE ORDER/JUDGMENT IN MC 229/2010 OF FAMILY
COURT,ERNAKULAM
PETITIONER/REVISION PETITIONER:
1 SREEJA S. NAIR,
AGED 33 YEARS,
W/O.K.M.MANOJ, KOLADIPARAMBIL,
VENNALA, KOCHI - 682 028.
2 DEVIKA V.A. MANOJ, @AMMU,
AGED 10 YEARS,
D/O.K.A.MANOJ, VELIYATH HOUSE,
PADIVATTOM, EDAPPALLY P.O., KOCHI - 682 024,
NOW RESIDING WITH 1ST PETITIONER
3 ADITYA MANOJ @ CHINNU,
AGED 7 YEARS
D/O.K.M.MANOJ, VELIYATH HOUSE, PADIVATTOM,
EDAPPALLY P.O., KOCHI - 682 024,
NOW RESIDING WITH 1ST PETITIONER
BY ADVS.
SMT.LEKHA SURESH
SRI.ASHOK SURESH
RESPONDENT/RESPONDENT:
K.A.MANOJ
AGED 40 YEARS
S/O.MANOHARAN, VELIYATH HOUSE (BARGAVI NIVAS),
PADIVATTOM, EDAPPALLY P.O., KOCHI - 682 024.
BY ADVS. SRI.DENIZEN KOMATH
SMT.C.P.JYOTHY
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
16.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RPFC.No.1 OF 2014
2
ORDER
The revision petitioners are the petitioners in M.C.No.299 of 2010 on the file of the Family Court, Ernakulam. The respondent in this revision petition (in short R.P.(F.C)) was the respondent in maintenance case (in short M.C.)
2. The revision petitioners had filed the M.C seeking separate monthly maintenance at the rate of Rs.10,000/- to the 1 st revision petitioner and Rs.5,000/- each to the 2 nd and 3rd revision petitioners. It was their case that, the 1 st revision petitioner was married to the respondent on 06.02.2003. The revision petitioners 2 and 3 were born in their wedlock. However, due to the alcoholic traits of the respondent, the couple and children are living separately since October, 2009 onwards. As the revision petitioners were unable to maintain themselves, they filed M.C. before the Family Court seeking maintenance allowance, on the assertions that, the respondent despite having sufficient means has neglected to maintain them.
3. The revision petitioners further averred in the M.C. that, the respondent is working as a gang man in the Southern Railway, and that he is drawing a monthly salary of Rs.18,000/-. In addition RPFC.No.1 OF 2014 3 to the salary, he has an income of Rs.30,000/- from his landed properties. The revision petitioners 2 and 3 are persuing their studies in Kendriya Vidyalaya, Kadavanthra, Ernakulam. They require a monthly expense of Rs.800/- towards their transportation charges and Rs.15,000/- for their food, shelter, education and other expenses. Hence they prayed that the M.C. be allowed.
4. The respondent resisted the M.C. He filed a counter statement denying the allegations in the M.C. He admitted the marriage as well as the paternity of the child. According to him, the marriage was a love marriage. He admitted that he was working as a gang man in the Railways. According to him, the 1 st revision petitioner wanted to lead an opulent lifestyle which led to their marital estrangement. Despite efforts made by the revision petitioner, no rapprochement was effected. He stated that he was only getting a net salary of Rs.7,240/- per month. He further contended that the 1st revision petitioner was employed as a Postal Assistant and she was getting a salary of Rs.8,000/- per month. He prayed that the M.C. be dismissed.
5. The 1st revision petitioner was examined as PW1 and the respondent was examined as RW1. Exts.B1 to B3 were marked.
6. The Family Court after considering the pleadings and RPFC.No.1 OF 2014 4 evidences on record, by the impugned order dated 26.08.2013 allowed the M.C. in part by directing the respondent to pay the revision petitioners 2 and 3 maintenance at the rate of Rs.2,000/- each. The 1st revision petitioner's claim for maintenance was disallowed, on the finding that she was in a position to maintain herself. It is challenging the above impugned order, this R.P.(F.C) is filed.
7. Heard Smt.Lekha Suresh, the learned counsel for the revision petitioners. Even though notice was served on the respondent there was no personal appearance or representation for the respondent.
8. The learned counsel for the revision petitioners argued that the Family Court assumed that the 1 st revision petitioner is getting a salary of Rs.8,000/-. Other than the bald statement averred by the respondent in his written objection, he has not produced any material before the Family Court to prove that the revision petitioner No.1 is employed as a Postal Assistant. The salary slip that was produced by the respondent is after all deductions. The counsel also argued that pay slip is not an authenticated document hence the same cannot be accepted.
9. The learned counsel for the revision petitioners limited her RPFC.No.1 OF 2014 5 claim to the refusal of the maintenance to the revision petitioner No.1. According to her, even assuming that the revision petitioner No.1 had some employment but that was not sufficient to live a life in the same status and standard of living as that of the respondent. Therefore she sought for an order directing the respondent to pay maintenance to revision petitioner No.1.
10. The Hon'ble Supreme Court Minakshi Gaur v. Chitranjan Gaur and Another [AIR 2009 SC 1377] and in Shailja and Another v. Khobbanna [AIR 2017 SC 1174] has held that even if the wife is capable of earning, it is not a ground to refuse maintenance to her if she cannot live in the same status and standard as that of the husband.
11. The learned counsel for the revision petitioners further submits that the revision petitioner No.1 was employed on temporary basis at that point of time and it was not a permanent job. Moreover, she was not getting Rs.8,000/- as alleged. It was only from 15.12.2015 that she was made permanent in the Postal Department. Hence the finding of the Family Court that revision petitioner No.1 (PW1) admitted in the evidence that she is getting a salary of Rs.8,000/- is erroneous and is liable to be set aside.
12. On going through the pleadings and evidences on record, I RPFC.No.1 OF 2014 6 have not found any such admission made by PW1. It is an undisputed fact that the respondent is working as a gang man in the Railways. Going by the assertion made by the revision petitioners, the respondent is getting a salary of Rs.18,000/- per month. In addition to to the same, he is also getting rent at the rate of Rs.30,000/- per month. When calculated, the respondent has an income of nearly Rs.48,000/- per month. The Family Court has only awarded Rs.2,000/- each to the revision petitioners 2 and 3. The award of maintenance at the rate of Rs.2,000/- each to the revision petitioners 2 and 3 is found to be reasonable and just. However, the refusal of the Family Court to award maintenance to the revision petitioner No.1 on the finding that she has got an employment is erroneous, irregular and improper.
13. In view of the settled proposition of law that maintenance is to be awarded under Section 125 Cr.P.C, which is a benevolent legislation enacted for the purpose preventing vagrancy, I hold that the order passed by the Family Court refusing maintenance to revision petitioner No.1 is erroneous.
14. In the above circumstances, considering the pleadings and evidences on record, particularly considering the fact that the respondent is working as a gang man in the Railways, and has a RPFC.No.1 OF 2014 7 total income of Rs.48,000/- per month, I feel it just and expedient to order the respondent to pay an amount of Rs.3,000/- as monthly maintenance allowance to the revision petitioner No.1 from the date of filing of the M.C. i.e., 30.10.2010 till 15.12.2015 when she was appointed as a permanent employee in the Postal Department.
In the result, the R.P.(F.C) is allowed in part,
(i) The respondent is directed to pay an amount of Rs.3,000/- as monthly maintenance allowance to revision petitioner No.1 from 30.10.2010 till 15.12.2015.
(ii) The claim in respect of the revision petitioners 2 and 3 for enhancement of maintenance is dismissed.
Sd/-
C.S.DIAS JUDGE Sru