Kerala High Court
Jayasree vs Shivaprasad on 27 January, 2021
Equivalent citations: AIRONLINE 2021 KER 53
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
RPFC.No.135 OF 2016
AGAINST THE ORDER/JUDGMENT IN MC 298/2014 DATED 11-11-2015 OF
FAMILY COURT,THRISSUR
REVISION PETITIONER/PETITIONER No.1:
JAYASREE
AGED 28 YEARS
D/O.RAVEENDRAN,MADATHIVALAPPIL HOUSE,
EDAPAL,PONNANI THALUK, MALAPURAM-679 576.
BY ADVS.SRI.VINAY RAMDAS
SMT.K.B.ANAMIKA
SRI.VISHNUPRASAD NAIR
RESPONDENT/RESPONDENT:
SHIVAPRASAD
AGED 37 YEARS, S/O.BHASKARAN,PAVITTHAKULANGARAYIL
HOUSE, AKATHIYUR, KUNNAMKULAM,THALAPPILLY THALUK,
THRISSUR-680 519.
R1 BY ADV. SRI.AKHIL K.MADHAV
R1 BY ADV. SRI.T.R.JERRY SEBASTIAN
R1 BY ADV. SRI.V.PRASANTH
R1 BY ADV. SRI.THOMAS M.JACOB
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
13-08-2020, THE COURT ON 27-01-2021 PASSED THE FOLLOWING:
R.P.(F.C) No. 135 of 2016
-:2:-
C.R.
ORDER
Dated this the 27th day of January, 2021 The challenge in the revision is against an order passed by Family Court, Thrissur in M.C. No.298/14. The 1st petitioner in the M.C., who has been denied with monthly maintenance, has approached this Court in the revision on hand. The above M.C was filed by petitioners 1 to 3 who are wife and minor children of the respondent seeking for monthly maintenance at the rate of Rs.10,000/- each. The Family Court has appreciated the evidence adduced by the parties and granted monthly maintenance at the rate of Rs.2,000/- each to minor petitioners 2 and 3 from the date of the petition and authorised the 1 st petitioner to collect the amount on their behalf. Maintenance claimed by the 1 st petitioner was declined for the reason that she refused to join the respondent in matrimony without a reasonable cause.
2. The facts of the case are summarised hereinbelow. For the sake of clarity, the parties to this revision are referred to hereinafter as the 1st petitioner and the respondent. The marriage between the 1st petitioner and the respondent was R.P.(F.C) No. 135 of 2016 -:3:- solemnised on 14.09.2006 and two children were born in the wedlock on 15.12.2007 and 21.08.2013. The respondent was working as supervisor in Dubai for a monthly salary of Rs.1,00,000/-. The 1st petitioner was unemployed. The 2nd petitioner has started his education. The respondent ill-treated the 1st petitioner under the influence of alcohol and neglected to maintain the petitioners from 2013 onwards. In the said circumstances, M.C was filed seeking for monthly maintenance at the rate of Rs.10,000/- each to petitioners 1 to 3.
3. The respondent filed objection admitting the marriage and birth of two children. The following contentions were raised. He is working as goldsmith and his monthly income is Rs.10,000/-. His 75 year old mother, who is a heart patient and suffering from diabetics, hypertension, cardiac problems and other allied diseases, was maintained by him. After a few days of stay jointly at the matrimonial home, the respondent who was employed abroad left the place. While working at gulf he had a monthly salary of 750 Dirhams and keeping 200 Dirhams for meeting his personal expenditure, the remaining amount was sent to his native place. The 1st petitioner misbehaved with his R.P.(F.C) No. 135 of 2016 -:4:- mother during her stay at the matrimonial home. She was in the habit of leaving matrimonial home on her volition without reasons. In February, 2010, the respondent came to native place and took the petitioners to his house. The 1 st petitioner was reluctant to live in the matrimonial home with the mother of the respondent. In 2010, the respondent abandoned his employment at gulf and returned to his native place. Though he invited the 1st petitioner to reside with him at the matrimonial home, she refused. He filed O.P.No.482/2011 seeking for a decree for restitution of conjugal rights. The 1 st petitioner agreed to resume cohabitation during the pendency of the case and therefore the above case was not proceeded with further. After residing together for few days, the 1 st petitioner ill-treated the respondent and she left the matrimonial home in 2013 without any reason. Efforts were taken by the respondent through mediators to bring back the 1st petitioner to the matrimonial home, but failed. In a petition filed by the respondent before Janamaithri Police Station, Kunnamkulam the 1 st petitioner was called for having a talk on amicable settlement. She openly stated before the Police that she dislikes the respondent. The 1 st R.P.(F.C) No. 135 of 2016 -:5:- petitioner had left the matrimonial home without any reason and therefore she is not entitled to get any maintenance. Accordingly, M.C was sought to be dismissed.
4. Before the Family Court, oral evidence was adduced by the 1st petitioner as PW1. The respondent did not adduce any oral evidence but marked Exts.D1 to D4. The Family Court has appreciated the evidence and dismissed the claim of the 1 st petitioner for monthly maintenance, after finding that she was residing separately from the husband without any reasonable cause.
5. The learned counsel for the 1st petitioner has contended that in a claim made under Section 125 Cr.P.C seeking monthly maintenance, a claimant shall establish only her inability to maintain herself, the sufficiency in the means of her husband to maintain her and neglect of her husband to maintain her. Therefore, according to the learned counsel, for a petition seeking maintenance under Section 125 Cr.P.C to sustain, pleadings must be made by the claimant in the petition filed, positively that she is unable to maintain herself, she was neglected to be maintained by the husband and that her husband R.P.(F.C) No. 135 of 2016 -:6:- has sufficient means to maintain her. The claimant must also establish the above three pleadings by cogent evidence. In a context, wherein specific pleadings have been taken by the claimant on the three factors as above and evidence has also been adduced to satisfactorily establish those, claim for maintenance ought not to have been denied by the Court. According to the learned counsel, the 1 st petitioner in the case has averred in the petition seeking maintenance, all the three factors as above positively and has also adduced cogent evidence to substantiate those. According to him, when the context being so, the Family Court ought not to have rejected the claim of the wife for monthly maintenance from the husband for the reason that she refused to live in the company of the respondent without a valid reason. According to him, grounds envisaged under sub- section(4) of Section 125 viz, the wife is living in adultery or refuses to live with husband without any sufficient reason or living separated by mutual consent would only empower the Court to disentitle the wife from receiving allowance for maintenance or interim maintenance and expenses of proceedings as the case may be, and to cancel the order granting R.P.(F.C) No. 135 of 2016 -:7:- monthly maintenance and expenses of proceeding, if the husband succeeds in proving any of those. According to him, sub-section(4) of Section 125 speaks about incidents that would occur posterior to the passing of the order granting maintenance under Section 125 (1) and therefore cannot be taken as grounds to decline maintenance. According to the learned counsel, if the reasons enumerated under sub-section (4) of Section 125 are also relevant for consideration in an application seeking maintenance under Section 125 Cr.P.C as held by the Family Court in the impugned order, those would have find a place in Section 125 (1) itself. According to the learned counsel, the Family Court is totally unjustified in declining maintenance to the 1st petitioner after a finding that she refuses to live with her husband without any sufficient reason, which forms a ground only for declaring the 1st petitioner as disentitled to get the already ordered monthly maintenance in her favour and to cancel the order granting monthly maintenance and expenses of proceedings against her.
6. The learned counsel has relied on Moideen v.
Nabeesha [2007 (1) KHC 44] and Sunitha Kachwaha and R.P.(F.C) No. 135 of 2016 -:8:- others v. Anil Kachwaha [2014 KHC 4690] to rest his contention raised as above. It has been held by a Single Bench of this Court in Moideen that permanent residence at two different places cannot be reckoned to be living together. Husband who permanently reside and work at far off places like places of employment abroad or distant cities in India cannot certainly successfully contend under Section 125 Cr.P.C that the wife should reside at his parental home or alongwith his relatives with no prospect of his visiting her and living with her on a permanent or regular basis.
7. In Sunitha Kachwaha the Apex Court has held as follows :
" Proceeding under Section 125 Cr.P.C is summary in nature. In a proceeding under S.125 Cr.P.C, it is not necessary for the Court to ascertain as to who was in wrong and the minute details of the matrimonial dispute between the husband and wife need not be gone into. While so, the High Court was not right in going into the intricacies of dispute between the appellant wife and the respondent and observing that the appellant wife on her own left the matrimonial house and therefore she was not entitled to maintenance. Such observation by the High Court overlooks the evidence of appellant wife and the factual findings, as recorded by the Family Court. Inability to maintain herself is the precondition R.P.(F.C) No. 135 of 2016 -:9:- for grant of maintenance to the wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. In her evidence, the appellant wife has stated that only due to help of her retired parents and brothers, she is able to maintain herself and her daughters. Where the wife states that she has great hardships in maintaining herself and the daughters, while her husband's economic condition is quite good, the wife would be entitled to maintenance." (Emphasis supplied)
8. The learned counsel for the respondent on the contrary has contended that the Family Court is perfectly justified in passing the impugned order, declining the claim of the 1 st petitioner for maintenance after finding that she has refused to live with her husband without a valid reason. According to him, under sub-section(4) of Section 125 Cr.P.C, three grounds are provided which disentitles the wife from receiving the monthly maintenance and expenses of proceedings ordered by the Court in her favour and the husband on successfully establishing any of those is entitled to get the order cancelled. According to him, refusal of the wife to live with the respondent without a valid reason is one among the grounds enumerated under sub- section(4) of Section 125 and on proving that successfully, the wife would be disentitled to receive the allowance of monthly R.P.(F.C) No. 135 of 2016 -:10:- maintenance and expenses of proceedings stand ordered by the Family Court under sub-section(1) of Section 125 in her favour.
9. It is clear from the evidence of the 1 st petitioner as PW1 that she has been inconsistent in giving reasons for her stay away from the respondent. In view of the inconsistency involved in her version about the reason that causes her to refuse the offer of the respondent to stay alongwith itself, her credibility is doubted and it can be held that for no valid reasons she refused to live with the husband. According to him, the Family Court has rightly found in the impugned order that the petitioner has no valid reason for her stay away from the respondent and therefore is not entitled to get maintenance under Section 125 Cr.PC. According to him, the revision petition is only to be dismissed.
10. The dictum in Moideen supra is totally irrelevant for consideration in the case on hand. In the light of the argument advanced by the learned counsel for the revision petitioner and on the basis of the dictum laid down by the Apex Court in Sunitha Kachwaha, supra this Court is inclined to hold that the claim for monthly maintenance of a wife under Section 125 Cr.P.C is only liable to be allowed when she successfully establishes the R.P.(F.C) No. 135 of 2016 -:11:- three factors enumerated thereunder, viz the neglect of the respondent to maintain her, her inability to sustain herself and the sufficiency in the earning of the respondent to maintain her. As held in Sunitha Kachwaha, supra a wife as claimant must plead in her petition specifically the above three factors and must adduce evidence to substantiate.
11. It is incumbent upon this Court in the context to see whether the 1st petitioner had made specific pleadings of the nature in the petition seeking monthly maintenance. It is pertinent to note from a scrutiny of the pleadings raised in the petition that a specific plea has been raised to the effect that the respondent neglected to pay maintenance to the petitioners. A plea was also found taken to the effect that the 1 st petitioner is unemployed. The further plea taken was that the respondent is working as Supervisor in Dubai and his monthly income is Rs.1,00,000/-. Therefore, it is clear that positive pleadings with reference to the three factors for sustaining a claim under Section 125 Cr.P.C have been taken by the 1 st petitioner. Then the question comes whether the 1st petitioner has established the above pleadings with cogent and reliable evidence. It has been R.P.(F.C) No. 135 of 2016 -:12:- deposed by the 1st petitioner as PW1 that the respondent neglected to maintain herself from 2013 onwards. Oral evidence has also been adduced by the 1 st petitioner as PW1 to the effect that the respondent was working abroad at the time of marriage and was earning sufficient income. PW1 has also stated during cross examination that the respondent is also doing business in gold ornaments. It is stated by her that she has no idea about the place wherein the respondent was working and has not seen any documents disclosing his salary. But, the oral evidence tendered by PW1 regarding the job of the respondent abroad, his business in gold ornaments and the income earned therefrom are not controverted by the respondent.
12. The respondent had taken a contention that though he was working abroad at the time of marriage, he abandoned the job and returned to his native place. He had also taken a contention that he does not have Rs.1,00,000/- as monthly income as averred by the 1st petitioner. His specific contention was that he is working only as a goldsmith and his monthly income at the relevant time is Rs.10,000/-. It was further contended that the age old mother who is suffering from various R.P.(F.C) No. 135 of 2016 -:13:- ailments was also maintained by him. He has also stated that while working abroad, his salary was 750 Dirhams and 200 Dirhams is kept apart for meeting his personal expenses.
13. Though contentions have been raised as above, the respondent did not tender oral evidence to substantiate those. Therefore, there is absolutely no evidence controverting the evidence adduced by the 1st petitioner as PW1. Admittedly the respondent was working at Gulf and had a salary of 750 Dirhams at the relevant time. Evidence is totally lacking to establish the abandonment of the job abroad. Though the respondent has stated that he is working as a goldsmith and his monthly income at the relevant time of filing of M.C is only Rs.10,000/-, he failed to adduce any evidence in that regard. The claim that the respondent that he has abandoned his job abroad after sometime of the marriage and started to do business in gold ornaments wherefrom he gets only as Rs.10,000/-, being factors within his personal knowledge, he has to establish those. When evidence in that regard is totally lacking, nothing prevents the court from taking adverse inference on the sufficiency in the earning of the respondent. When the 1st petitioner's pleading that the R.P.(F.C) No. 135 of 2016 -:14:- respondent was working abroad and was getting Rs.1,00,000/- was not successfully controverted by the respondent by producing relevant materials establishing on the contrary, there is every reason for the court to take a view that the respondent is a man having sufficient income. Therefore, the 1 st petitioner can also be taken to have successfully established that the respondent is having sufficient income.
14. The 1st petitioner as PW1 has deposed before the court below that she was unemployed and has no income of her own. The respondent has denied the pleading of the 1 st petitioner that he neglected to maintain herself and the children from 2013. But the respondent in his counter statement has contended that since the 1st petitioner was living separated from him without a reason, she is not entitled to get maintenance. Therefore from the said pleading of the respondent itself, it is established that he has neglected to maintain the petitioners. Therefore, the averment of the 1st petitioner that the respondent neglected to maintain herself and the children from 2013 can also be taken to have established.
R.P.(F.C) No. 135 of 2016-:15:-
15. Therefore, as rightly held by the apex Court in Sunitha Kachwaha supra, the relevant factors to sustain the claim for monthly maintenance under sub-section(1) of Section 125 Cr.P.C have been established by the 1st petitioner. The contention raised by the respondent that the 1 st petitioner refuses to live with him without a valid reason is not one liable to be pleaded and established by a wife for obtaining monthly maintenance from her husband under Section 125 Cr.P.C. It is something meant to be taken after passing of an order granting monthly maintenance and expenses of proceedings under sub-section(1) of Section 125 Cr.P.C. Such a contention if taken and established, by a husband after passing of the order granting maintenance, it would disentitle the petitioner from receiving the allowance of monthly maintenance or interim maintenance as the case may be and also the expenses of proceedings as ordered by the Court in her favour. Therefore, the grounds that the 1 st petitioner is living in adultery or refuses to live with her husband without sufficient reason or that they are living separately by mutual consent are liable to be taken by the husband only for getting an order passed in favour of the wife, under R.P.(F.C) No. 135 of 2016 -:16:- sub-section(1) of Section 125 Cr.P.C, cancelled. The position is all the more clear from a reading of sub-section(5) of Section 125 Cr.P.C and therefore is extracted hereunder :
"(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
16. The Family Court is totally unjustified in passing the impugned order declining the claim of the 1 st petitioner for monthly maintenance and dismissing the M.C to that extent. Therefore, the impugned order to the extent it dismisses the M.C and declines to grant monthly maintenance to the 1 st petitioner is liable to be set aside.
In the result, the revision is allowed. The impugned order passed in the M.C to the extent it dismisses the claim of the 1 st petitioner for maintenance is reversed. The 1 st petitioner is found entitled to get monthly maintenance under sub-section(1) of Section 125 Cr.P.C. For fixation of the quantum of monthly maintenance payable in favour of the 1 st petitioner, the M.C is remanded to Family Court, Thrissur. The Family Court on receipt R.P.(F.C) No. 135 of 2016 -:17:- of a certified copy of this order shall fix a date for appearance of the parties and intimate them. The Family Court shall also grant reasonable opportunity to the parties to adduce evidence relevant for fixation of the rate of monthly maintenance payable to the 1st petitioner, if it finds that the evidence available on record is not adequate for the purpose. The Family Court shall also see that the M.C is disposed of within a period of two months from the date of receipt of a copy of this order.
Sd/-
MARY JOSEPH, JUDGE ttb