Kerala High Court
K.Prathyoosh vs Manisha C.Mohan on 26 March, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
THURSDAY, THE 25TH DAY OF SEPTEMBER 2014/3RD ASWINA, 1936
RPFC.No. 343 of 2014
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AGAINST THE ORDER IN MC 331/2012 of FAMILY COURT, KANNUR
DATED 26-03-2014
REVISION PETITIONER/RESPONDENT:
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K.PRATHYOOSH, AGED 32 YEARS,
S/O.K.KRISHNAN, RESIDING AT GOURISHANKARAN
KADIRUR AMSOM, WEST PONNYAM DESOM
MALAL P.O.WEST PONNIAM, THALSSERY TALUK
KANNUR DISTRICT.
BY ADVS.SRI.SUNIL NAIR PALAKKAT
SRI.K.N.ABHILASH
RESPONDENT(S)/PETITIONER:
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MANISHA C.MOHAN
D/O.MOHANASASARA, ELAYAVOOR AMSOM, KEEZHATHALLI DESOM
P.O.THAZHE CHOVVA, KANNUR TALUK
KANNUR DISTRICT - 670 006.
BY ADVS. SRI.U.BALAGANGADHARAN
SRI.G.GIREESH
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON
25-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JJJ
K.HARILAL, J.
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R.P. (FC) No. 343 of 2014
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Dated this the 25th day of September, 2014
O R D E R
The revision petitioner is the respondent in M.C. 331/2012 on the files of Family Court, Kannur. The above M.C. was filed by the respondent herein, who is the legally wedded wife of the revision petitioner, claiming maintenance under section 125(1) of the Code of Criminal Procedure.
2. According to the respondent even though she is the legally wedded wife of the revision petitioner, the revision petitioner had been neglecting her and refused to pay maintenance allowance to her from July, 2012 onwards. The respondent is unable to maintain herself as she has no job or any other source of income to eke out her livelihood. Now, she is depending upon her parents; whereas the revision petitioner is a Software Engineer, who is earning R.P.(FC) No. 343 of 2014 -2- more than Rs.30,000/- per month. She was constrained to live separately due to the ill treatment and harassment meted out to her. It is also contended that the revision petitioner is a drunkard and he used to come to the house late in the night after consuming liquor.
3. The revision petitioner filed counter affidavit admitting the marriage with the respondent. But, he denied all the allegations levelled against him. He has not disputed the averment that the respondent is living separately from 2012 onwards. According to him there is no reason to live separately and claim maintenance allowance from him. It is also alleged that the respondent had left the matrimonial house on the day the revision petitioner had gone to Chennai in connection with his employment.
4. After considering the evidence on record, the learned Judge directed the revision petitioner to pay maintenance allowance at the rate of Rs.5,000/- per month R.P.(FC) No. 343 of 2014 -3- to the respondent. The legality and propriety of this Order is under challenge in this revision petition.
5. The learned counsel for the revision petitioner advanced arguments challenging the entitlement of maintenance as well as the quantum of maintenance allowance fixed by the court below. According to the learned counsel the respondent is living separately without sufficient reason. Therefore, she is not entitled to get maintenance. Similarly, the quantum of maintenance allowance determined by the court below is excessive and dis-proportionate with the income of the revision petitioner. It is also contended that the court below has not considered Ext.B1 in its correct perspective.
6. Per contra, the learned counsel for the respondent advanced arguments to justify the findings in the impugned order. The learned counsel contended that the court below can be justified in disbelieving Ext.B1. Similarly, the R.P.(FC) No. 343 of 2014 -4- quantum of maintenance allowance fixed by the court below is just and proper. Therefore, there is no reason to interfere with the impugned order under challenge.
7. In view of their rival submissions at the Bar, the question to be considered is whether the court below can be justified in finding that the respondent is entitled to get maintenance allowance and the revision petitioner is liable to pay maintenance allowance at the rate of Rs.5,000/- per month.
8. The marital status of the respondent is not disputed by the revision petitioner. It is also admitted that he is a Software Engineer working at Chennai in a private Company. But he seeks exemption under Ext.B1 stating that he has lost his job. To substantiate the said contention he has produced Ext.B1. He has not denied the averment that the respondent has been residing separately from July, 2012 onwards and the revision petitioner has no case that R.P.(FC) No. 343 of 2014 -5- he has been maintaining her after July, 2012 also. There is also no evidence to show that the revision petitioner has paid any amount towards maintenance allowance after July, 2012.
9. Regarding the entitlement of maintenance allowance, after considering the entire evidence on record particularly the oral evidence given by PW1 with regard to the misery she had faced while she was staying in the matrimonial home, the learned Judge observed that her oral evidence instilled confidence and the same is convincing. It is also held that separate stay, on the part of the petitioner at her residence, cannot be taken as a stand to deprive her from seeking maintenance allowance as the legally wedded wife. I do not find any material evidence to take a view contrary to the said finding. Therefore, it can be safely held that there is no reason to interfere with the findings as regards the entitlement of maintenance allowance from the R.P.(FC) No. 343 of 2014 -6- revision petitioner.
10. Coming to the quantum of maintenance allowance, admittedly he is a Software Engineer working in a private Company. But, he contended that he has lost his job and the same is evidenced by Ext.B1. Ext.B1 is a letter issued by the Senior Officer of the private Company in which he had worked. As rightly held by the court below such a letter cannot be relied on to prove that he has lost his job. Though the genuineness of the letter was doubted by the respondent, the revision petitioner has not taken steps to examine the person who issued Ext.B1. In such circumstance an adverse inference also can be drawn against Ext.B1. Moreover, even if he has lost his job in the present Company, being a Software Engineer it cannot be held that he is a person who has lost his earning capacity forever. Certainly, being a qualified engineer, he will get employment so as to earn livelihood for his wife. The R.P.(FC) No. 343 of 2014 -7- respondent has the right to live with the standard of life on par with that of her husband, who is a software engineer.
12. Having regard to the status of the parties, cost of living and income of the revision petitioner, I am of the opinion that the quantum of maintenance allowance fixed at the rate of Rs.5,000/- per mensum is just and proper and there is no reason to interfere with the impugned order under challenge.
Hence this revision petition is devoid of any merit and is dismissed accordingly.
Sd/-
K. HARILAL, JUDGE //True Copy// P.A. to Judge jjj