Kerala High Court
Balasubramoniam.K vs Deva Nanda (Minor) on 29 June, 2022
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
RPFC NO. 100 OF 2015
AGAINST THE ORDER/JUDGMENT MC 128/2013 OF FAMILY COURT,
NEDUMANGAD DATED 06.06.2014
REVISION PETITIONER/RESPONDENT:
BALASUBRAMANIAM.K
AGED 29 YEARS
S/O KOLAPPAN, AGED 29 YEARS, T.C 21/706,
PALLITHANAM LANE, NEDUMKAD, MANAKAD VILLAGE,
THIRUVANANTHAPURAM, PIN NO.695 002.
BY ADVS.SRI.P.V.VENUGOPAL
SRI.P.R.JAYAKRISHNAN
SRI.L.RAJESH NARAYAN
RESPONDENT/PETITIONER:
SOUMYA.K.S.,
AGED 23 YEARS,
W/O BALASUBRAMANIAM, T.C 21/706, PALLITHANAM
LANE, NEDUMCAUD, MANACAUD VILLAGE,
THIRUVANANTHAPURAM PRESENTLY STAYING AT
VANDANATHU VADAKKUMKARA VEEDU, ANAD, P.O,
NEDUMANGADU.695 001.
BY ADVS.SRI.G.RANJU MOHAN
SMT.M.SANTHI (K/868/2011)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
HEARING ON 29.06.2022, ALONG WITH RPFC.175/2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P.(FC) No.100 of 2015
and R.P.(FC) No.175 of 2016
-:2:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
RPFC NO. 175 OF 2016
AGAINST THE ORDER/JUDGMENT IN MC 461/2015 OF FAMILY COURT,
NEDUMANGAD DATED 28.01.2016
REVISION PETITIONER/RESPONDENT:
BALASUBRAMONIAM.K
AGED 31 YEARS
S/O KOLAPPAN, AGED 31 YEARS, T.C 21/706,
PALLITHANAM LANE, NEDUMCAUD, MANACAUD VILLAGE,
THIRUVANANTHAPURAM, PIN NO.695002.
BY ADV SRI.P.V.VENUGOPAL
RESPONDENT/PETITIONER:
DEVA NANDA (MINOR), AGED 2½ YEARS,
D/O BALASUBRAMANIAM, T.C 21/706, PALLITHANAM
LANE, NEDUMCAUD, MANACAUD VILLAGE,
THIRUVANANTHAPURAM PRESENTLY STAYING AT
VANDANATHU VADAKKUMKARA PUTHEN VEEDU, ANAD, P.O,
NEDUMANGADU REPRESENTED BY HER MOTHER SOUMYA K.S,
VANDANATHU VADAKKUMKARA VEEDU, ANAD, P.O,
NEDUMANGADU.
BY ADVS.SMT.M.SANTHI (K/868/2011)
SRI.G.RANJU MOHAN
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR
ADMISSION ON 29.06.2022, ALONG WITH RPFC.100/2015, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P.(FC) No.100 of 2015
and R.P.(FC) No.175 of 2016
-:3:-
MARY JOSEPH, J.
-----------------------
R.P.(F.C)No. 100 of 2015
and
R.P.(F.C)No. 175 of 2016
-----------------------
Dated this the 29th day of June, 2022
ORDER
Both these revision petitions are filed by the respondent in M.C. Nos.128/13 & 461/15 before the Family Court, Nedumangad. M.C. No.128/13 is an application filed by the respondent herein under Section 125(1) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') seeking for monthly maintenance allowance at the rate of Rs.8,000/- from the respondent before the Family Court. The Family Court has allowed the M.C and directed the respondent/revision petitioner to pay Rs.7,000/- as monthly maintenance allowance from 05.04.2013, the date on which it was filed. The said order is under challenge in RP(FC) No.100 of 2015.
2. M.C. No.461 of 2015 was filed by the respondent herein under Section 127 Cr.P.C before the Family Court seeking for R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:4:- enhancement of monthly maintenance allowance of Rs.1,000/- stands ordered in favour of her minor child. The Family Court allowed the M.C and enhanced the monthly maintenance allowance of Rs.1,000/- stands originally ordered in favour of the minor child to Rs.3,500/- and directed the petitioner herein to pay it from 25.11.2015 onwards. Challenging the orders passed as above, revision petitions on hand are filed.
3. Sri.P.V.Venugopal, the learned counsel for the petitioner has contended that the respondent is an Army officer drawing only Rs.40,000/- as monthly salary and therefore the family court is highly erred and unjustified in ordering to pay Rs.7,000/- as the monthly maintenance allowance to the wife of the revision petitioner. According to him, it is established by Ext.P2 that the revision petitioner is only a Sepoy in Army Postal Service and was paid only Rs.10,717/- monthly. According to him, fixation of Rs.7,000/- as monthly maintenance allowance is not proportionate to the monthly income earned by the revision petitioner. He has raised a contention in R.P.(FC) No.100/2015 that the object behind Section 127 Cr.P.C is to lift up, keep the R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:5:- status and mode of life enjoyed by the wife prior to the date of separation from her husband. According to him, the Family Court ought not to have shut its eyes to the reality that statutory deductions are there from the salary of the respondent under categories, PF, Income Tax, Insurance etc. According to him, the Family Court has also overlooked an important aspect brought in evidence by the revision petitioner that his age old parents are depending on him for their sustenance. According to him, the wife had deliberately suppressed the factum that while settling the disputes among herself and the revision petitioner amicably, a Settlement Deed No.2953/12 was executed on 27.03.2012 at SRO, Chalai assigning a landed property comprised in Survey Nos.30 & 34/2024 of Manacaud Village and a building situated therein exclusively belongs to the revision petitioner, in her favour. According to him, in that context, the claim of the wife for enhancement of the monthly maintenance allowance from the revision petitioner ought to have been discarded by the court. The contention in conclusion was that the Family Court failed to R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:6:- appreciate the evidence on record in its proper perspective and therefore erred and unjustified in passing the impugned order.
4. In RP(FC) No.175/2016, the contention of Sri.P.V.Venugopal, the learned counsel was that Section 127 Cr.P.C only warrants modification of Rs.1,000/- stands ordered under Section 125 Cr.P.C in circumstances, wherein the status of either parties are changed and on establishing the changes by the party approaching for modification, by cogent and convincing evidence. According to him, the application filed under Section 127 Cr.P.C. suffers for want of a plea on change in circumstances. It is for the petitioner who seeks modification under Section 127 Cr.P.C to establish that Rs.1,000/- originally stands ordered in favour of the minor child in M.C. No.195/14 is in view of the change in the status due to efflux of time is insufficient to meet the child's requirements. According to him, admittedly the revision petitioner has a gross salary of Rs.18,000/- from his job as a Sepoy in Army Postal Service. Even at the time when the order granting maintenance allowance was passed originally in MC No.195/14, the revision petitioner admittedly was getting the R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:7:- same salary. The wife failed to adduce any evidence to establish that the husband is getting more income than Rs.18,000/- at the relevant time of filing of application for modification of the maintenance allowance. It is further contended that Rs.1,000/- stands ordered as monthly maintenance allowance originally is being paid to the minor child, regularly. It is contended that the court below cannot sit in appeal over an order awarding maintenance allowance of Rs.1,000/- under Section 125 Cr.P.C which itself was passed on subjective satisfaction and without any evidence being adduced by the party. The contention raised in R.P.(FC) No.175/2016 was that there were no sufficient ground for the Family Court to award an exorbitant sum of Rs.7,000/- as monthly maintenance allowance to the wife.
5. The monthly maintenance allowance stands ordered in favour of the wife and the minor child are the subject matter in the revisions on hand. The only difference is that in RP(FC) No.100/2015 the original order granting maintenance allowance at the rate of Rs.7,000/- in wife's favour is under challenge whereas in RP(FC) No.175/16 an order passed in M.C. R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:8:- No.461/15, modifying the monthly maintenance allowance originally stands ordered in favour of the minor child is under challenge. Admittedly the revision petitioner is employed in Army. The objections raised by the revision petitioner against the M.C in the counter affidavit filed by him are discussed in the impugned order. According to the petitioner in the M.C., at the time of marriage, information transpired was that the respondent was an Army officer and was drawing a monthly salary of Rs.40,000/-. It was also sworn so by the claimant in the affidavit filed in lieu of chief examination. It was admitted by the respondent before the Family Court that he had only Rs.10,770/- as net salary. The pay-cum-salary certificate formed part of the evidence on record as Ext.R1. The net salary of the revision petitioner in the year 2013 is certified in Ext.R1 as Rs.10,717/-. But the Family Court has passed an order in M.C. 128/2013 directing the revision petitioner to pay Rs.7,000/- as monthly maintenance allowance.
7. Since it is established by the respondent that he is getting only Rs.10,770/- as salary at the relevant time, the R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:9:- fixation of the monthly maintenance allowance as Rs.7,000/- appears to this Court disproportionate to the monthly income of the respondent. Therefore this Court finds it appropriate to reduce it to Rs.5,000/-.
8. In R.P.(FC) No.175/2016, as already stated, order enhancing monthly maintenance allowance in favour of the minor child is under challenge. Rs.1,000/- was awarded in favour of the minor child vide order originally passed by the Family Court. It was almost after one year from the date of passing of the original order that M.C.No.461/2015 was filed under Section 127 Cr.P.C seeking for enhancement. The child at the relevant time of filing of the M.C was aged only one year. The salary of the respondent admittedly is Rs.10,770/-. At the time when application seeking enhancement was filed, the minor child has reached 2½ years. The Family Court has enhanced the monthly maintenance allowance from Rs.1,000/- to Rs.3,500/-. Section 127 Cr.P.C provides that the original monthly maintenance allowance stands ordered in favour of a party can be modified only when the party who applies succeeds in establishing the R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:10:- grounds based on which modification is sought, by adducing cogent evidence. Pleadings on grounds must be incorporated in the application seeking modification. Then alone evidence can be let in. It is found from the narration of the pleadings in the impugned order that no specific reason was shown in the application while canvassing for modification of the monthly maintenance allowance. The child was aged 1 year when the original M.C was filed and the modification was sought at her tender age of 2½ years itself. The Family Court was pleased to modify the monthly maintenance allowance to Rs.3,500/- on mere surmises and conjunctures. Therefore, the modification granted by the Family Court in favour of the minor child appears to be without any basis. In the above circumstances, the impugned order passed in M.C.No.461/2015 deserves to be interfered with. It is clarified that the order setting aside the impugned order will not stand in the way of the petitioner raising a further claim for modification in case any changes in circumstances occur in future.
R.P.(FC) No.100 of 2015and R.P.(FC) No.175 of 2016 -:11:-
In the result, R.P.(FC) No.175/2016 is allowed and R.P.(FC) No.100/2015 stands allowed in part. The order passed in M.C. No.461/2015 to the extent it modified the monthly maintenance allowance to Rs.3,500/- is set aside and the order of the Family Court in M.C. No. 195/2014 awarding Rs.1,000/- as monthly maintenance allowance to the child is maintained. Though orders have been passed in 2014 and 2016, maintenance allowance stands ordered is contended as not paid till date. Context being so, this Court directs the revision petitioner to deposit the entire arrears of monthly maintenance allowance at the rate of Rs.1,000/- stands ordered in favour of the minor child and maintained by this order and monthly maintenance allowance at the rate of Rs.5,000/- stands modified by this order, within a period of one month from the date of receipt of a copy of it.
Sd/-
MARY JOSEPH, JUDGE.
ttb R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:12:- APPENDIX OF RP(FC)No.100 OF 2015 REVISION PETITIONER'S EXHIBITS:
ANNEXURE A1 : CERTIFIED COPY OF ORDER PASSED IN MC 128/2013 DATED 06.06.2014 DIRECTING TO PAY MAINTENANCE TO WIFE @ RS.7,000/- BY HONOURABLE FAMILY COURT AT NEDUMANGAD.
ANNEXURE A2 : COPY OF THE RATION CARD BEARING NO.APL/BEARING NO.1102049798 ANNEXURE A3 : COPY OF THE PAY CUM SALARY CERTIFICATE BEARING NO.8377051 K INDICATING DESIGNATION AS SEPOY IN POSTAL UNIT OF ARMY ISSUED BY THE OFFICER COMMANDING C/O 56 APO DATED 06/07/2013 ANNEXURE A4 : COPY OF PETITION FILED AS CMP 217/2014 IN MC 128/2013 UNDER SECTION 128 CR.P.C. ANNEXURE A5 : COPY OF NOTICE DATED 08/10/2014 ISSUED BY HONOURABLE FAMILY COURT AT NEDUMANGAD TO APPEAR ON 10/11/2014 R.P.(FC) No.100 of 2015 and R.P.(FC) No.175 of 2016 -:13:- APPENDIX OF RP(FC)No.175 OF 2016 REVISION PETITIONER'S EXHIBITS:
ANNEXURE A1 : CERTIFIED COPY OF ORDER PASSED IN MC 461/2015 DATED 28.01.2016 U/S.127 Cr.P.C. BY HONOURABLE FAMILY COURT AT NEDUMANGADU ANNEXURE A2 : COPY OF ORDER PASSED IN MC 128/2013 DATED 06.06.2014 U/S.125 Cr.P.C. BY HONOURABLE FAMILY COURT AT NEDUMAGADU ANNEXURE A3 : COPY OF ORDER PASSED IN RP(FC) 100/2015 DATED 17.03.2015 BY HONOURABLE HIGH COURT.
ANNEXURE A4 : COPY OF DEPUTATION ORDER DATED 21/10/2008 GIVEN BY REVISION PETITIONER.
ANNEXURE A5 : COPY OF REQUEST DATED 15.07.2015 GIVEN BY REVISION PETITIONER.