Kerala High Court
Vinoj Mathew vs Simi Thomas on 24 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
FRIDAY, THE 24TH DAY OF JANUARY 2020 / 4TH MAGHA, 1941
RPFC.No.110 OF 2014
AGAINST THE JUDGMENT DATED 22-01-2014 IN MC 1/2013 OF
FAMILY COURT, CHAVARA
REVISION PETITIONER/ RESPONDENT :
VINOJ MATHEW,
S/O.LATE K.JOHN MATHEW,
KUNNAKOOT HOUSE, POURNAMI NAGAR,
ALUVA - 683 101.
BY ADVS.
SRI.ALAN PAPALI
SRI.GILBERT GEORGE CORREYA
SRI.NISHIL.P.S.
SRI.J.VIMAL
RESPONDENT/ PETITIONER :
SIMI THOMAS,
D/O.THOMAS THARAKAN, KRIPALAYAM,
PADINJATTEKARA P.O, KARUNGAPPALLY,
KOLLAM DISTRICT - 692 524.
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY
HEARD ON 24-01-2020, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RPFC.No.110 OF 2014
2
ORDER
The revision petitioner was the respondent in MC.No.1/2013 on the files of the Family Court, Chavara. The respondent in this revision petition [in short, RP(FC)] was the petitioner in the maintenance case (in short, MC).
2. The respondent had filed MC, inter alia, contending as follows; The respondent is the wife of the revision petitioner. Their marriage was solemnised on 13.09.2010. They are an issue-less couple. Due to the marital estrangement between the couples, the respondent was constrained to file OP.No.1503/10 before the Family Court, Kollam, seeking recovery of patrimony. Subsequent to the filing of the original petition, the revision petitioner neglected to maintain the respondent since 27.10.2010. She has no means of sustenance. The revision petitioner is a Mechanical Engineer employed abroad and earning a monthly salary of Rs.2,00,000/- per month. Though he is well employed, he has willfully refused to maintain the respondent. Hence, she seeks an amount of Rs.10,000/- RPFC.No.110 OF 2014 3 per month as maintenance allowance.
3. The revision petitioner resisted the MC. He filed a written objection, inter alia, contending as follows; The MC is not maintainable either in law or facts. The respondent is BAMS student. Though the revision petitioner is a Mechanical Engineer, he is not earning an amount of Rs.2,00,000/-. His parents are both retired and sick persons. The respondent deserted the revision petitioner on 24.10.2010 and has refused to resume co-habitation. She insisted the revision petitioner to shift from his parental home to her house, which the revision petitioner refused. Despite the repeated request made by her, the revision petitioner has refused to resume co-habitation. Immediately thereafter, she filed OP.No.1503/2010. She attached the properties of the revision petitioner. Her sole intention is to harrass and vex the revision petitioner. She is living separately from him without any sufficient reason. The amount sought as maintenance is excessive and unreasonable.
4. The respondent was examined as PW1 and RPFC.No.110 OF 2014 4 Ext.A1 marriage certificate was marked through her. The revision petitioner was examined as CW1.
5. The Family Court, after considering the pleadings and evidence on record, allowed the MC in part by directing the revision petitioner to pay the respondent monthly maintenance allowance @Rs.5,000/- from 21.01.2011.
6. It is challenging the above order that this RP (FC) is filed.
7. Heard Sri.Alan Papali, the learned counsel for the revision petitioner.
8. Even though notice on the respondent was served, there was no appearance/ representation for the respondent.
9. The learned counsel for the revision petitioner argued that, dehors the finding in the impugned order, in a subsequent proceeding between the parties the same Family Court, by common judgment dated 30.06.2014 disallowed the respondent's claim for maintenance. The said common judgment has been RPFC.No.110 OF 2014 5 produced in this RP (FC) as Annexure-I.
10. The learned counsel for the revision petitioner invited my attention to paragraphs 37 and 38 of the common judgment wherein it is held that the respondent's claim for maintenance from the revision petitioner @Rs.10,000/- in OP.No.142/2013 has been disallowed, on the ground that the respondent is in a position to earn as she is a professional. The learned counsel argued that by virtue of Section 41 of the Evidence Act, the judgment that has been rendered by a civil court in a civil proceedings wherein the respondent had sought for similar relief as sought in the MC, and the civil court has declared the respondent is not entitled for any amount as maintenance from the revision petitioner. According to him, the said finding is binding on the criminal court. Therefore, by virtue of Section 125(2) of the Cr.P.C., an order of maintenance allowed by the Family Court in the MC has to be cancelled.
11. Paragraphs 37 and 38 of the common judgment in OP.No.142/2013, reads thus :
RPFC.No.110 OF 2014 6 "37. Point Nos.4 to 5 in OP.No.142/2013 : Since these points are inter related they are discussed together.
Status of the parties admitted. It has come out in evidence that the spouses have been residing separately since 27.10.2010 and they had no issues. The petitioner would claim maintenance at Rs.10,000/- per mensum. PW1 would say that the respondent has neglected to maintain her and that she was deserted. It has pleaded in paragraphs 8 and 9 of the petition that the petitioner has no job or income of her own and that she is depending on her parents for her livelihood. PW1 would further say that the respondent was having a monthly income of Rs.2,00,000/- while he was in gulf and has other source of income. He is now earning Rs.75,000/- per mensum and also having bank deposits. The learned counsel for the petitioner would argue that the respondent has sufficient means and that he has neglected to maintain the petitioner who was actually thrown on the street. He had not even cared to pay her bus fare or her to purchase books of reference while he was studying. It was denied and disputed by the respondent and he would contend that the petitioner is a medical officer having sufficient means and that he was deserted. RW1 would say that PW1 is a medical officer in Azad Pharmaceuticals and has been earning Rs.40,000/- per mensum. Her parents are retired pensioners and are having other source of income. He would further say that he has to maintain his aged parents and that his father is suffering from cancer. It has come out in evidence that he died on 23.06.2012. further he was sending Rs.5,000/- per mensum to the petitioner towards her maintenance. The learned counsel RPFC.No.110 OF 2014 7 for the respondent would argue that the PW1 is a medical officer and even otherwise she has the professional skill of a doctor having the qualification of BAMS and that she could have earn much out of her profession. The fact that the respondent is a mechanical engineer and he was in gulf for a pretty long period not disputed and as a matter of fact he is bound to maintain his wife.
38. As long as the matrimonial tie subsists between the parties, the wife is entitled to be given maintenance according to the status of her husband. While considering the question of 'maintenance' some significant points should necessarily be taken into account such as (i) position and status of the parties. (ii) reasonable wants of the claimant towards food, clothing, shelter and medical attendance. (iii). income of the respondent, (iv) income, if any, of the claimant and the (v) number of persons the respondent is obliged to maintain. As regards the quantum of maintenance it may be from 1/3rd to 50% of the income of the respondent but no rigid formula can be fixed. It may differ from case to case. It is true that the maintenance should not be refused on the ground that the wife can pull on by doing any job. The fact that the petitioner is a BAMS graduate not disputed. Though PW1 would say that she did not practice her profession that cannot be believed. As enlightened by the learned counsel for the respondent even otherwise she is able to earn from her professional qualification. Therefore I hold that she is not entitled to maintenance as prayed for".
RPFC.No.110 OF 2014 8
12. Section 127(1) and (2) of the Cr.P.C.reads thus :
127. Alteration in allowance.- 1[(1) On proof of a change in the circumstances of any person, receiving, under Section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be.] (2). Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. [emphasis supplied]
13. In view of the findings of the Family Court in OP.No.142/2013 extracted above, and Section 127(2) of the Cr.P.C., I have no doubt in my mind that this is a fit case for the learned Judge, to consider whether Section 127 (2) Cr.P.C. stands attracted or not.
14. I am of the considered opinion that it is not for this Court in exercise of its revisional RPFC.No.110 OF 2014 9 jurisdiction under Section 19(4) of the Family Courts Act read with Section 401 of the Cr.P.C. to decide the question under Section 127 (2) Cr.P.C. in view of Annexure A1 judgment.
15. Without expressing anything on merits, granting liberty to the revision petitioner to move the Family Court under Section 127(2) of the Cr.P.C, in the light of Annexure A1 judgment passed by this Court, I dispose of this R.P (FC). If any such application is filed by the revision petitioner, the same shall be considered by the Family Court, in accordance with law.
This RP (FC) is disposed of accordingly.
Sd/-
C.S.DIAS, JUDGE RKM