Kerala High Court
M.T.Shimna vs Deepak Kumar on 16 July, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:53856
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
RPFC NO.564 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 30.07.2016 IN MC NO.350 OF
2014 OF FAMILY COURT, THALASSERY
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REVISION PETITIONER/PETITIONER :-
M.T.SHIMNA, AGED 42 YEARS
D/O.VIJAYAN, VALSALA NILAYAM, KEEZHUNNA AMSOM DESOM,
KANNUR DISTRICT.
BY ADV SHRI.M.V.AMARESAN
RESPONDENT/COUNTER PETITIONER :-
DEEPAK KUMAR, AGED 50 YEARS
S/O.RET. CAP. K.SEKHARAN, SHEVIL COTTAGE,
PO.MAVILAYI, KANNUR DISTRICT, PIN - 670 622
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 16.07.2025, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
RPFC No.564 of 2016
-: 2 :-
2025:KER:53856
P.V.KUNHIKRISHNAN, J
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R.P.(F.C) No.564 of 2016
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Dated this the 16th day of July, 2025
ORDER
This revision is filed against the order dated 30.07.2016 in MC No.350/2014 on the file of Family Court, Thalassery. It is a petition filed by the revision petitioner claiming maintenance under Section 125 Cr.P.C. against the respondent herein. The petitioner's case in brief is as follows :- The petitioner is the legally wedded wife of the respondent whose marriage was solemnised on 16.10.1995. After the marriage, they resided under the same roof as husband and wife and in the said wedlock one child was born. The respondent is a Mechanical Engineering Diploma holder and he has been doping his business in computed under the name and style as Dessun Infotech and Dessun Computers at Delhi. After the marriage, the petitioner was taken to Delhi and within one year of the marriage, she became pregnant and after four months of delivery the petitioner was taken to Delhi and continued to reside there. Even during the initial stage of the marriage the RPFC No.564 of 2016 -: 3 :- 2025:KER:53856 respondent used to inflict cruelty towards her and used to quarrel with her after consuming alcohol. He has been doubting the chastity of the petitioner with his wild imaginations. When the son attained the age of 5, he was admitted in the Bharathiya Vidya Bhavan, Kannur and the petitioner also shifted her residence to the native place for the education of the son. After completion of the 4 th std, his son got admitted in DAV School, Delhi and resided with the petitioner upto his 8 th std. Actually in 2010, the petitioner and her son were driven out from Delhi by the respondent. Thereafter from 2010 May onwards the petitioner and her son have been residing in the petitioner's parental house at Thottada. The respondent apart from the computer institution he is in ownership of a building at Delhi and landed properties and house building in his native place. He is also in ownership of vehicles including car. His business includes computer software and hardware sale and programming also. So the respondent has sufficient means and capacity to maintain the petitioner. He has been fully neglected her. The petitioner has no employment or income. She is solely depending upon mother for her livelihood. In May 2014, because of her financial incapacity, she was compelled to join RPFC No.564 of 2016 -: 4 :- 2025:KER:53856 as a sales executive in a private concern. But the wages are insufficient and inadequate to meet her expenses. Towards the maintenance, she requires Rs.25,000/- per month. She prayed for an order of maintenance from the respondent.
2. To substantiate the case, the petitioner herself was examined as PW1. The respondent was examined as RW1. The respondent took two contentions before the Family Court. First is that, the petitioner is living in adultery and the second is that the petitioner has sufficient income and she is not entitled to maintenance. As far as the first defence of the respondent is concerned, the Family Court rejected the same. But, as far as the second defence of the respondent is concerned, the Family Court observed that from the evidence of the petitioner, it is clear that she is having a job and therefore, she has got sufficient income. Accordingly, the claim petition was rejected. Aggrieved by the same, this revision is filed.
3. Heard learned counsel for the petitioner. Even though notice was issued to the respondent, there is no appearance for the respondent.
RPFC No.564 of 2016-: 5 :-
2025:KER:53856
4. A short point raised by the learned counsel for the petitioner is that, even as per the impugned order, the petitioner's case is that she is only having a temporary job. The learned counsel relied on the judgment of this Court in Jayaprakash E.P. v. Sheney P. and another [2025 SCC OnLine Ker. 494] and submitted that even if the wife is having a temporary job, which is not sufficient for her sustenance, the Family Court can grant maintenance.
5. Considering the contention of the petitioner, the relevant portion of the judgment in Jayaprakash E.P.'s case (supra) is extracted hereunder :-
"9. As stated already, it has come out in evidence that the wife held a job that was not permanent in nature. Her engagement was purely temporary and the income she gets from the employment is a meagre one, which is hardly sufficient to supplement the day-to-day expenditures of herself and her daughter. The wife's temporary job, even if it provides some income, would not disentitle her to claim maintenance from her husband if she asserts that the said income is insufficient for her maintenance."
6. Keeping in mind the above observation, this Court perused the case of the petitioner and the respondent. The RPFC No.564 of 2016 -: 6 :- 2025:KER:53856 Family Court rejected the claim of the petitioner stating that she has got sufficient means for her livelihood. It will be better to extract the relevant portion of the impugned order, which reads thus :-
"8. Now the question which needs to be answered is whether the petitioner/wife is a person unable to maintain herself. The specific case of the petitioner in her petition is that she has no employment or income. But she admitted in para 6 of the petition that in the month of May 2014, because of her financial incapacity she was compelled to join as a sales executive in a private concern and the wages which she is receiving are insufficient and too inadequate to meet her requirements. When examined as PW1, also she admitted in cross examination that she is now working at Honda Showroom, Thottada. But her case is that it was only a temporary job. The case of respondent is that on former occasion she had worked at Nissan and it was on getting an assurance of the higher wages she shifted to the Honda showroom from where she is getting monthly salary of Rs.25,000/-. Though PW1, the petitioner is admitting that she is working at Honda, she denies the case of the respondent that she is getting monthy salary of Rs.25,000/-. Admittedly the case is one where the petitioner has not produced any document to show her monthly salary. The respondent when examined as RW1 has stated that though he approached the Honda company for getting a document showing salary particulars of the petitioner, that was not furnished to him stating that the employees' personal details cannot be furnished. When the respondent has a specific case that RPFC No.564 of 2016 -: 7 :- 2025:KER:53856 the petitioner is working at Honda company and is getting a monthly salary of Rs.25,000/-, it is the petitioner who is admittedly working there is to produce document to show that her case that she is getting only a nominal amount as salary is true. Her contention that since she is only a temporary employee, no document would be available with her employer cannot be accepted. She could have filed application before the court for summoning the document or concerned person so as to enable the court to come to a correct decision on the income of the petitioner. The fact that the respondent/husband is having sufficient means cannot be said to be a ground for the petitioner/wife seeking maintenance. It is shown that she is capacble of maintaining herself. In the above said context, it is to be held that what is stated by the respondent to the effect that the petitioner is having sufficient income so as to enable her to maintain herself has to be accepted. Apart from it the petitioner is a person having landed property having an extent of 10 cents also. The above aspects lead the court to take a view that the petitioner is a person who is able to maintain herself and hence she is not entitled to get any amount from the respondent as maintenance. The petition is therefore liable to be dismissed."
7. On a perusal of the above would show that the evidence adduced by the petitioner is only to the effect that she is having a temporary job and that is not sufficient to meet her requirements. But, the Family Court observed that it is the duty of the petitioner to prove that her job is only a temporary job RPFC No.564 of 2016 -: 8 :- 2025:KER:53856 and she is not getting sufficient income. I cannot agree with the above observation of the Family Court. Once the petitioner adduced evidence to the effect that her job is only temporary and the income received from the temporary job is not sufficient for her livelihood, it is the duty of the respondent to disprove the same.
8. The Apex Court in Bhuwan Mohan Singh v. Meena and Others [2014 KHC 4455] observed like this :-
"3. Be it ingeminated that S.125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the RPFC No.564 of 2016 -: 9 :- 2025:KER:53856 statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life "dust unto dust". It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds."
9. In Ramesh Chander Kaushal, Captain v. Veena Kaushal [1978 KHC 607], the Apex Court also observed like this :-
"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Art.15 (3) reinforced by Art. 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to the selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts."
10. Keeping in mind the above principle, this Court considered the facts of the case. I am of the considered opinion that the impugned order is to be set aside and the matter is to RPFC No.564 of 2016 -: 10 :- 2025:KER:53856 be reconsidered by the Family Court. I am remanding this matter because there is no appearance for the respondent even though notice is issued to the respondent. I also make it clear that no de novo trial is necessary and if the parties want to adduce any further evidence, they can be allowed to adduce evidence and thereafter the Family Court will decide the matter.
Therefore, this revision is allowed in the following manner :-
1. The order dated 30.7.2016 in MC No.350/2014 of the Family Court, Thalassery is set aside and MC No.350/2014 is restored.
2. The Family Court will allow the petitioner and the respondent to adduce further evidence, if any and thereafter will decide the matter in accordance with law, as expeditiously as possible.
3. The petitioner will appear before the Family Court, Thalassery on 11.08.2025.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE Jvt