Bindu vs Sri.C.K.Mohandas on 25 May, 2007

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Kerala High Court

Bindu vs Sri.C.K.Mohandas on 25 May, 2007

The appeal is filed against the order passed by the Family Court, Thrissur, in O.P.No.575 of 2002. That O.P. was disposed along with another M.C.No.187 of 2002, the former a claim for past and future maintenance and the latter a claim for maintenance under Section 125 of the Code of Criminal Procedure, by common order dated 25.07.2007.

2. Appellants, mother and child, are the claimants in the aforesaid two proceedings. They claimed maintenance from the respondent, the husband and father of the 1st and 2nd claimants respectively. Negativing the challenge raised by the respondent that he has no liability to maintain the claimants, the learned Mat.Appeal.No.196/2008 2 Judge, Family Court, awarded past maintenance at the rate of Rs.750/- for three years and future maintenance at the rate of Rs.1,000/- per month to the 2nd claimant child, and Rs.1,000/- per month as past maintenance for a period of two years to the 1st claimant wife in the O.P. The wife was employed for one year during the three year period for which past maintenance was claimed and that after instituting the proceedings she is employed as a teacher was taken into account to hold that she is entitled to past maintenance only for a period of two years and not eligible for any future maintenance from the husband. So far as the claim for maintenance canvassed under Section 125 of the Code, claim of the child alone was upheld directing the respondent/father to pay maintenance to him at the rate of Rs.1,000/- per month. Claim fixed as above was directed to be adjusted in the decree granted awarding future maintenance to the child in the sense that there should not be any duplication of the claims. Claim of the wife was declined since she has an employment providing income sufficient enough to maintain herself. Impeaching the decree passed over the claim for past Mat.Appeal.No.196/2008 3 and future maintenance in the O.P, that alone, the claimants have filed the appeal contending that allowing past maintenance only partly and denial of the claim of future maintenance to the wife was improper, and fixation of the quantum of maintenance for both the claimants was inadequate and insufficient.

3. Notice ordered to the respondent in the appeal was returned with endorsement 'not claimed', and thereupon service was declared sufficient.

4. We heard the learned counsel for the claimants. The respondent is employed in a gulf country is highlighted by the learned counsel to assail the quantum of maintenance fixed and awarded by the court below as totally inadequate and insufficient. The 2nd claimant child suffered from serious illness, and that proved by the materials tendered in the case was not properly appreciated by the court below in fixing the quantum of maintenance is the further submission of the counsel. So far as the denial of past maintenance to the wife for the period of one Mat.Appeal.No.196/2008 4 year and also allowing her past maintenance at the rate of Rs.1,000/- only for two years, it is contended that the facts and circumstances presented in the case with reference to the materials produced have not been correctly appreciated by the court below and that, according to counsel, led to passing of such inadequate sum to her. She produced a salary certificate showing that she got Rs.2,000/- per month for a period of one year during the three years for which claim for past maintenance was made, and that, according to counsel, led the court below to deny her past maintenance for that period and also in fixing a sum of Rs.1,000/- per month for the rest of the two year period. She was employed in a leave vacancy and emoluments provided at Rs.2,000/- for that period was totally insignificant and it has no nexus in adjudging her claim for maintenance which she is entitled to get from her husband who is bound to maintain her, is the submission of the counsel. The claim of the child, fixed at Rs.1,000/- by the court below, it is submitted, has to be refixed by this Court considering his illness and the continuous treatment required on account of his illness. Mat.Appeal.No.196/2008 5

5. After carefully going through the common order passed by the learned Judge, Family Court and re-appreciating the evidence tendered in the proceedings, we find, so far as the claim for past maintenance and also future maintenance claimed by the 1st appellant wife from the respondent/husband, no interference is called for. We notice that at least for a limited period during the three year period she claimed past maintenance. She was employed. She is a graduate holding a B.Ed. degree. After the commencement of the proceedings, admittedly, she is employed as a teacher. When she is capable of maintaining herself from the income derived from her employment, she cannot seek maintenance from her husband. We also notice that she has not produced any documentary material disclosing her emoluments as a teacher. When such be the case, the order passed by the court below limiting her claim for past maintenance only for a period of two years and that too at the rate of Rs.1,000/- per month holding that she is not entitled to claim any future maintenance from her husband is Mat.Appeal.No.196/2008 6 only proper and correct. Challenge against the quantum fixed towards past maintenance for the wife, which is impeached as inadequate, it does not impress us as there is total paucity of evidence on the materials tendered even with respect to the income potentiality of the husband at that point of time. What we notice is that after commencement of the proceedings her husband is employed in a gulf country and that can be taken only for fixing future maintenance. The wife is not entitled to claim future maintenance where she is profitably employed generating sufficient income to meet her livelihood. She cannot claim to be a dependent on her husband for sustenance in life. When that be so, no interference with the order passed over the past or future maintenance on the claims of the wife by the court below is called for.

6. Future maintenance at the rate of Rs.5,000/- was claimed for the child from the father in the O.P. Similar future claim for maintenance was canvassed in the M.C. as well. Learned Judge, Family Court, after appreciating the materials Mat.Appeal.No.196/2008 7 produced, has granted Rs.750/- per month as past maintenance and Rs.1,000/- as future maintenance to the child. Whether the claims so awarded are correct and proper has to be examined. Admittedly, the child is suffering from a disease known as 'perineal hypospadias'. Child, at the time of commencement of the proceedings, was aged 5 years. Materials produced in the case clearly demonstrate that continuous medical treatment from several institutions is being provided to the child in view of his illness. The child has to undergo treatment for different periods during his infancy is borne out by the medical records tendered in the case. Respondent/father is admittedly employed in a gulf country. No material has been tendered to show what is his income potentiality. The fact that he is employed in a gulf country can be taken note of to hold that he has sufficient income potentiality to provide for the child, including considerable part of the expenditure for his treatment as well. No doubt, the mother, who is employed, is also bound to maintain the child within her means. It is reasonable to hold that the respondent/father has the capacity to provide Mat.Appeal.No.196/2008 8 maintenance at the rate of Rs.2,500/- per month to the child. He has not let in any material to show what is his income other than contending that he has no employment, which has been found to be false. He is also duty bound to prove his income when a claim for maintenance is made against him by his wife and child. Any fixation of amount for the child less than the sum stated above in the backdrop of the fact that the father is employed in a gulf country, where the child suffers from an illness requiring continuous treatment will be totally unreasonable and unjustified. We also take note of the income potentiality of the mother and also her liability to maintain the child in fixing the quantum of maintenance at the rate of Rs.2,500/- per mensum, by the father. We refix the quantum of past maintenance for the child at the rate of Rs.1,500/- per month for the period covering the past maintenance and at the rate of Rs.2,500/- per mensum as future maintenance payable by the respondent/father. Claim of future maintenance, we make it clear, in inclusive of what is fixed and awarded in the M.C. Mat.Appeal.No.196/2008 9 Modifying and refixing the quantum of past maintenance payable to the child at the rate of Rs.1,500/- per month and future maintenance at the rate of Rs.2,500/- per month, and directing the respondent/father to pay maintenance is fixed, the appeal is partly allowed directing both parties to suffer their costs.

PIUS C. KURIAKOSE JUDGE S.S.SATHEESACHANDRAN JUDGE prp

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