Kerala High Court
Revision vs R. Nabeesa on 21 December, 2020
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942
RPFC.No.555 OF 2016
AGAINST THE ORDER IN MC No.97/2014 DATED 16-07-2015 OF
FAMILY COURT, THALASSERY
REVISION PETITIONERS/PETITIONERS IN THE M.C.
1 R. NABEESA,
AGED 40 YEARS, D/O MUHAMMED,
SAMABAS, REVISION MAYAN MUKKU,
KANHIRODE POST, KANNUR DISTRICT,
PIN - 670 592.
2 NOORA,
AGED 8 YEARS, D/O IBRAHIM,
SAMABAS, REVISION MAYAN MUKKU, REPRESENTED BY HER
MOTHER AND NATURAL GUARDIAN R.NABEESA, THE 1ST
PETITIONER, KANHIRODE POST, KANNUR DISTRICT,
PIN - 670 592.
3 INSHA,
AGED 4 YEARS, D/O IBRAHIM, SAMABAS, MAYAN MUKKU,
REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN
R.NABEESA, THE 1ST PETITIONER, KANHIRODE POST,
KANNUR DISTRICT, PIN - 670 592.
BY ADV. SRI.P.K.RAVISANKAR
RESPONDENT/RESPONDENT IN THE M.C.
P. IBRAHIM,
S/O SAITHALAVI, HC 45, B.COY 9 KSRP,
KUDULU, ELECTRONIC CITY, BANGALORE 560 100
BY ADVS. SRI.T.RAMESH BABU
SRI.C.K.SREEJITH
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
17-11-2020, THE COURT ON 21-12-2020 PASSED THE FOLLOWING:
RPFC.No.555 OF 2016 2
ORDER
Dated this the 21st day of December, 2020 In the revision on hand challenge is raised against an order passed by Family Court, Thalassery in M.C.No.97 of 2014 to the extent it declined the claim of the 1st petitioner for monthly maintenance and to the extent it allowed claims of the 2 nd and 3rd petitioners, in part. Revision petitioners are the petitioners in the M.C who are the wife and two minor children born to the respondent in his 2nd marriage with the 1st petitioner.
2. M.C.No.97 of 2014 was filed by the 1st revision petitioner claiming Rs.10,000/- as monthly maintenance to herself and Rs.5,000/- each as monthly maintenance to 2nd and 3rd revision petitioners. For the sake of clarity, the parties to the revision will hereinafter be referred to as petitioners 1,2 and 3 and respondent in accordance with their status in the M.C. before the Family Court.
3. 1st petitioner has pleaded in the M.C that the respondent married her on 07.10.2004 and the 2nd and 3rd petitioners were born in that wedlock, that after the birth of the 3 rd petitioner the respondent and his relatives started to ill-treat her raising RPFC.No.555 OF 2016 3 demands for more gold and money, that the respondent is a police officer at Karnataka drawing Rs.39,000/- as salary, that he is having landed properties yielding Rs.3,00,000/- as income annually, that she was having no income to maintain herself and the children, that the 2nd petitioner is aged 9 years and studying in 3rd standard and the 3rd petitioner is aged 5 years and that the claim for maintenance was raised since the respondent has neglected to maintain them.
4. Counter statement was filed by the respondent admitting the marriage and the birth of two children in the wedlock. Ill-treatment based on demand for more gold and money was denied by him.
5. It was contended that death of the 1st wife necessitated the 2nd marriage with the 1st petitioner as a companion for him and caretaker for the children, that the 1 st petitioner was a Beedi roller at the time of marriage, that he is working as the Assistant Sub Inspector of Police in Karnataka State Reserve Police, that he does not own landed properties, that during the stay of the 1 st petitioner and children with him at Karnataka, he was maintaining them, that at present they had shifted their residence to their native place and are staying in a house jointly belonging to the respondent and his son born in his first marriage, that the 1 st petitioner's stand was RPFC.No.555 OF 2016 4 that until the house wherein she is staying is assigned in her favour, she won't live with the respondent, that he has to maintain his four children born in the first marriage, and his sister who is a widow having two children and that he is prepared to maintain the petitioners, if they join him to lead a life together.
6. Evidence was adduced by both parties. 1 st petitioner tendered oral evidence as PW1 and the respondent as CPW1. Exts.B1, B2 series and B3 series were also marked on the respondent's side.
7. Family Court on appreciation of evidence arrived at a finding that the 1st petitioner had left the company of the respondent without any justifiable reason and therefore is not entitled to get maintenance from him. Thus claim of the 1 st petitioner for maintenance was declined. 2nd and 3rd petitioners were found by the Family Court entitled to get maintenance from the respondent and Rs.2,500/- was fixed as the quantum payable to each of them.
8. Sri.P.K.Ravi Sankar, the learned counsel, on behalf of the petitioners contended that, the Family Court is highly unjustified in passing the impugned order. According to him, the evidence on record was not correctly appreciated by the Family Court and therefore, maintenance was declined to the 1st petitioner and only a RPFC.No.555 OF 2016 5 meagre amount was ordered as maintenance to the 2 nd and 3rd petitioners. According to him, admittedly the respondent was Assistant Sub Inspector of Police at Karnataka and therefore, the Family Court ought to have found that he was having sufficient earning and granted a sum higher than Rs.2,500/- each to the 2 nd and 3rd petitioners as maintenance.
9. It was further contended that the 1st petitioner had raised a specific pleading in the petition seeking maintenance that the respondent's company was left by her due to ill-treatment by him and the children born in his first marriage and evidence was also tendered in tune with that. But, the Family Court failed to appreciate the evidence in it's correct perspective and thus the impugned order was passed to the prejudice of the 1st petitioner.
10. The learned counsel for the respondent had contended that the Family Court is highly justified in declining maintenance to the 1st petitioner. According to him, the 1 st petitioner though contended in the counter statement that the ill-treatment of the respondent was based on his demands for more money and gold, while adducing evidence, she has deviated from the above stand and stated that the ill treatment was on account of his illicit relationship with a lady named Ambujam. According to him, the 1 st petitioner's plea that due to ill treatment by the respondent and his RPFC.No.555 OF 2016 6 children in his first marriage, she was constrained to leave his company, was left disproved and therefore, the Family Court was justified in finding that the 1st petitioner refused to live with the respondent without any valid reason and therefore, is disentitled to get maintenance from the respondent.
11. According to the learned counsel in a case where the 1 st petitioner failed to establish the monthly income of the respondent and where it was established by evidence that the respondent has to meet payment of rent, loan dues and also to maintain four children born in his first marriage and his widow sister and her children, the Family Court is perfectly justified in awarding Rs.2,500/- each as monthly maintenance to the 2 nd and 3rd petitioners. Thus he canvassed for dismissal of the revision petition.
12. In the backdrop of the rival arguments, this Court ventured to appreciate the evidence on record to see whether the Family Court was justified in it's view while declining maintenance to the 1st petitioner and awarding only Rs.2,500/- each as maintenance to petitioners 2 and 3.
13. As already stated, the 1st petitioner had only her testimony as PW1, in evidence. It was averred by her in the petition seeking maintenance that she shifted her residence from RPFC.No.555 OF 2016 7 Karnataka to her native place, away from the company of the respondent due to his cruel treatment commenced after the birth of their second child, and that too, based on demands for more gold and money. But, while tendering evidence as PW1, she has stated an exaggerated version that the illicit relationship of the respondent with a lady named Ambujam was the cause behind ill treatment.
14. Evidence tendered to the effect is not admissible and also not reliable for the reason that the petition seeking maintenance was devoid of a plea to that effect. When the 1 st petitioner says that cruel treatment by the respondent was the reason behind her stay away from respondent's company and when she pleads demand for more money and gold as the reason for cruelty and deposes the illicit relationship with a lady as the reason for cruelty, she being inconsistent on her stands, can only be taken as an incredible witness. This is a case wherein the respondent has denied the plea of cruel treatment and therefore, the 1 st petitioner is burdened to establish the same by independent evidence. The 1st petitioner did not even attempt to establish the same. Moreover, PW1 while tendering evidence has also gone to the extent of stating:
"എതകകഇപ ൾഎന കട നക ണപ ക ൻതയ റ യ ലഞൻപ ക ൻതയ റല . ഇപ ൾഞൻ എതകകയന തഭ ര" ഭർതബന തടരവ ൻഉപ+ശക ല .."RPFC.No.555 OF 2016 8
15. It is pertinent to note that the respondent had taken a definite stand in his counter statement as well as while adducing evidence as CPW1 that he is prepared to maintain the petitioners if they join him to stay together. Therefore, there was a valid offer from respondent to the petitioners to join him. The extract above would reveal that the 1st petitioner is reluctant to join the respondent. Though the reason for staying away was stated as cruel treatment by the respondent, she failed to establish that by cogent evidence. Therefore, there was refusal from her side to join the company of the respondent without any valid and justifiable reason. Under Sub-Section (4) of Section 125 Cr.P.C., a wife is disentitled to get maintenance if she keeps herself away from the company of the husband and refuses to live together for no valid reasons.
16. This Court has no hesitation to hold on the basis of the discussions above that the Family Court has correctly held that the 1st petitioner is not entitled to get monthly maintenance from the respondent and therefore interference sought for is unwarranted.
17. Now, this Court's concern is to see whether the quantum ordered as maintenance to the children are reasonable or not. Admittedly, the respondent was working as Assistant Sub Inspector at Karnataka. Admittedly, he has four children in his first marriage RPFC.No.555 OF 2016 9 out of which one daughter though was given in marriage, got divorced and another one, unmarried. The 1 st petitioner did not state about the monthly salary of the respondent. Though she has pleaded that landed property is owned by the respondent and is getting Rs.3,00,000/- annually therefrom and deposed in tune with, in view of the denial by the respondent, she has to adduce independent evidence to substantiate those. But, she failed to adduce any other evidence and therefore the monthly income of the respondent stands not established by her.
18. Respondent while being examined as CPW1 has stated that as Assistant Sub-Inspector of police, he is getting a salary of Rs.39,276/-. But, he failed to produce his salary certificate to establish that. Ext.B3 series are produced by him but, admittedly those do not bear the signature or seal of the Commandant, who is his drawing officer. Therefore, Ext.B3 series cannot be relied upon. Though CPW1 has stated that half of his salary could be credited towards Provident Fund, he pleads ignorant about the minimum payable towards it. CPW1, though has stated that he has to repay loan dues, authentic documents to establish the date on which the loan has been availed, the quantum availed, the EMIs due and whether repayment is still pending are not forthcoming. Ext.B2 series are alleged by the respondent as the rent receipts to RPFC.No.555 OF 2016 10 establish payment of Rs.9,000/- to the landlord for a building leased out for his residence, the authenticity is doubted for the reason that those do not bear the name and address of the landlord who issued those. The landlord who allegedly issued is also not examined to prove those. Admittedly the respondent who is holding the post of Assistant Sub Inspector of Police is provided with a quarters. The stand of CPW1 was that since the number of children is more, the quarters is insufficient to accommodate all and therefore, he opted to reside in a building having rent of Rs.9,000/-. The respondent as CPW1, when he says that after meeting all payments, he has only Rs.10,000/- as taken home salary and with that he has to maintain his 4 children, his sister and her 2 children, it is difficult to digest that such a man would opt to stay in a building having Rs.9,000/- as rent avoiding the official quarters that stands allotted in his favour. According to CPW1, more amount is credited to PF anticipating the conduct of marriage of his daughter born in his 1 st marriage. If he has not opted for depositing excess amount in PF, his taken home salary would be more. The factum that he is making deposits of money in anticipation of future needs cannot stand in the way of awarding reasonable maintenance to the 2nd and 3rd petitioners who are also children of the respondent. For the reason that the respondent has RPFC.No.555 OF 2016 11 four children born in his 1st marriage and sister and her 2 children to be maintained, he cannot be exempted from his statutory obligation to maintain the petitioners, who are also his children born in his second marriage, justly and reasonably.
19. The respondent admittedly is an Assistant Sub Inspector of Police and he can be taken to have sufficient income. He failed to establish his alleged expenditure on rent and loan. Admittedly excess payment is made as contribution towards PF. The respondent being an Assistant Sub Inspector of Police, petitioners 2 and 3 have the entitlement to live in the same status in the society. In that backdrop, Rs.2,500/- stands awarded as monthly maintenance to each of them is undoubtedly a meagre amount and this Court finds every justification in enhancing it. The 1 st petitioner's claim that the 2nd petitioner is studying in 3 rd standard and the 3rd one is aged 5 years was not disputed by the respondent. Rather, his stand was that the 2nd petitioner being a student of a school which provides for free food and education, and the 3 rd petitioner being a minor, much money is not required to maintain them. Such a stand cannot be accepted. Being the children of an Assistant Sub Inspector of Police, the children have the right to live in the status he was maintaining in the society and not as destitutes.
RPFC.No.555 OF 2016 12
In the result, revision succeeds and is allowed in part. Rs.2,500/- stands granted as monthly maintenance to 2nd petitioner is modified and enhanced to Rs.4,000/- and to 3 rd petitioner is enhanced to Rs.3,000/-.
Sd/-
MARY JOSEPH JUDGE NAB/JJ/MJL