Kerala High Court
K.K. Thambi vs Sreedevi on 10 April, 2019
Author: T.V.Anilkumar
Bench: T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941
RP(FC).No. 254 of 2014
M.C.NO.291/2002 of FAMILY COURT,THRISSUR, DATED 10-06-2014
REVISION PETITIONER/RESPONDENT:
K.K. THAMBI, AGED 52 YEARS,
S/O.K.S KESAVAN, KAVUNGAL HOUSE,
PADINJARE VEMBALLUR P.O., KODUNGALLUR TALUK,
EDAVILANGU (VIA), THRISSUR DISTRICT,
PIN - 680671
BY ADVS.
SRI.M.R.VENUGOPAL
SMT.DHANYA P.ASHOKAN
RESPONDENTS/PETITIONERS:
1 SREEDEVI,
AGED 41 YEARS,
D/O.KARUTHANDAN SUBRAMANYAN,
ENGANDIYOOR AMSOM AND DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT,
PIN - 680615
2 SREEPATHI,
AGED 20 YEARS,
S/O.K.K. THAMBI, C/O.KARUTHANDAN SUBRAMANYAN,
ENGANDIYOOR AMSOM AND DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT, PIN - 680615
BY ADV. SRI.PREMCHAND M.
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
4.4.2019, THE COURT ON 10.04.2019 PASSED THE FOLLOWING:
RP(FC).No. 254 of 2014 : 2 :
T.V.ANILKUMAR, J.
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R.P.(FC)No.254 of 2014
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Dated this the 10th day of April, 2019
ORDER
Revision petition is filed by the husband of 1 st respondent and father of 2nd respondent minor son, challenging the order awarding maintenance to the wife and child passed by the Family Court, Thrissur, dated 10.6.2014 in M.C.291/2002. Under the impugned order, the revision petitioner was directed to pay monthly maintenance at the rate of `4,500/- to the wife till the month of February 2012 and for the future period at the rate of `7,500/-. As regards the minor son, the 2 nd respondent herein, the order directed payment of `4,700/- from the date of M.C.291/2002 till December 2012 when he already attained majority.
2. The revision petitioner is aggrieved by the aforesaid order and the challenge is raised on the major ground that the maintenance awarded was exorbitant and unreasonable RP(FC).No. 254 of 2014 : 3 : in as much as the court failed to take into account the actual income he had been earning.
3. The mother and son had filed M.C.81/1997 and obtained an award of maintenance of `500/- for herself and `300/- for the son as per an order passed on 24.10.1997 under Section 125(1) of the Code of Criminal Procedure (for short 'the Code'). After lapse of period of 5 years, the mother and son moved the Family Court, Thrissur invoking Section 127(1) of the Code, alleging that by virtue of change of circumstances in their life and increase of cost of living etc., they needed an enhanced amount of monthly maintenance and claimed `5,000/- for the mother and `4,000/- for the son respectively. The Family Court awarded monthly maintenance at the rate of `1,000/- for each of them which, however, was challenged by the revision petitioner before this court in Revision and the same on being set aside, resulted in remand of the matter for fresh consideration.
4. After the matter came back, the Family Court, Thrissur conducted a fresh enquiry and after examining evidence on record, passed the impugned order on 10.6.2014 which is the RP(FC).No. 254 of 2014 : 4 : subject matter under challenge in this revision petition.
5. While M.C.291/2002 was pending, the respondents applied for amendment of the petition seeking to enhance the former rate of maintenance already claimed by them to `20,000/- each for the mother and son. This was mainly on account of the allegation that since 2011 onwards, the wife was suffering from Renal disease and she required dialysis twice a week. Since the treatment involved heavy expenses, she needed more amount of maintenance in the place of `5,000/- which was formerly claimed in M.C.291/2002. The son also claimed enhancement, but no specific averment alleging any changes in his circumstances was made. When he claimed `4,000/- formerly on the date of institution of the M.C.291/2002, he only alleged the change in the educational expenses as well as increase in cost of living. That was the case with his mother also when she claimed `5,000/- on the ground of increase in cost of living. The amendment was allowed and after the amendment, M.C.291/2002, as it now stands, is for an amount of `20,000/- each claimed by the RP(FC).No. 254 of 2014 : 5 : mother and son as their maintenance.
6. The first question to be considered is whether any changes occurred in the circumstances of life of the mother and son. Eventhough the revision petitioner disputed incidence of substantial changes in the circumstances of the lives of the respondents, the fact remains that such changes really occurred entitling them to payment of enhanced maintenance. Such circumstances have been convincingly proved not only by the testimony of PW1, the wife of the revision petitioner but also the documents on record.
7. Inevitably, the cost of living of respondents increased since 24.10.1997 when the original award granting maintenance was passed under Section 125 of the Code. This is undisputed and cannot be disputed also. The educational expenses of the child also increased. Therefore, on the date of institution of M.C.291/2002, the mother and son were entitled to increase of maintenance which they were receiving, on the proved ground of increase in cost of living itself.
8. By the impugned order, the court below awarded an RP(FC).No. 254 of 2014 : 6 : amount of `4700/- to the minor son from the date of M.C. petition till the month of December 2012 when he completed 18 years. Sofar as the wife of the revision petitioner is concerned, there occurred substantial changes in her life especially after 2011 when she began undergoing treatment for Renal disease. Exts.A1 to A11 are the service and cash bills issued from Jubilee Mission Hospital, Thrissur proving the treatment taken by PW1 for Renal disease. Ext.A12 Medical Certificate issued from the said hospital shows that she was on maintenance dialysis twice a week. It is also proved that she required minimum amount of `1,20,000/- towards her treatment each year. This does not appear to be in dispute since RW1 revision petitioner pleaded complete ignorance of the alleged disease as well as expenses required for treatment and those incurred by her. I fully agree with the court below in its finding that there is substantial change in the lives of the mother and the minor son requiring compulsive enhancement in the existing rate of maintenance.
9. But the crucial question that requires consideration is the source of income of the revision petitioner and also the RP(FC).No. 254 of 2014 : 7 : actual income he has been earning. Without this question being answered on the basis of evidence on record, the claim for enhancement cannot be upheld at all.
10. According to the respondents, the revision petitioner is a senior welder in a company in Gulf and has been drawing `60,000 per month. Absolutely there is no evidence to prove this allegation. He was alleged to have been drawing monthly income of `10,000/- from landed properties. This is also not proved to be true. On the other hand, revision petitioner said that he was a labourer in a steel fabrication unit in Gulf and was earning 550 Dirhms which is equivalent to Indian Rupee of 9,000/-. By his own admission, he has only 32 ¼ cents of land. After amendment in M.C. petition in February 2012, the revision petitioner said that he lost his job in Gulf and was thereafter involved in coolie work in local places in his native land. According to him, he went for coolie work that too only very occasionally and his income was much lesser than in the past.
11. The court below, after analyzing the evidence on record, could not form any definite view with respect to the RP(FC).No. 254 of 2014 : 8 : amount of income being earned by the revision petitioner. It drew a speculation assuming that since every unskilled coolie could ordinarily draw `700 per month, revision petitioner who is a welder by profession and a skilled labourer could draw more and on that premise, his monthly income was fixed as `30,000/- on notional basis. This notional fixation of amount was seriously challenged by the learned counsel for the revision petitioner.
12. In my view, the court below is not justified in having made assumption and fixed `30,000/- as the monthly income without any materials on record on a notional basis. Even assuming that `700/- could be the average income of a coolie also as reckoned by the court below, the monthly average income cannot exceed more than `15,000/-. Therefore, if at all, revision petitioner being taken as a skilled worker also, under no circumstances, in my opinion, notional monthly income exceeding `20,000/- could have been fixed in this case. Necessarily therefore, the standard adopted by the court below in fixing the rate of monthly maintenance being not reasonable, requires interference and consequential RP(FC).No. 254 of 2014 : 9 : modification.
13. After hearing both sides and re-appreciating the evidence, I am of the opinion that the rate of monthly maintenance to which the minor son is entitled cannot be allowed to exceed more than `3,000/- from the date of M.C. petition till December 2012 when he attained the majority. Having regard to the presumed income of the revision petitioner, any view allowing a higher rate of maintenance would only be unjust and improper.
14. Notwithstanding the fact that the 1st respondent wife required a very sympathetic approach and pitiable consideration on account of her physical illness and deteriorating condition, the revision petitioner cannot be burdened with liability for more amount than which he could actually earn or could raise. In my opinion, disagreeing with the view taken by the court below, the 1 st respondent, wife could be awarded a monthly amount of `4,000/- from the date of M.C. petition till the month February 2012 and thereafter at the rate of `6,500/- towards future maintenance for the subsequent period. In my view, a view different from the RP(FC).No. 254 of 2014 : 10 : above would not be consistent with notion of justice. In short, my finding is that the 1st respondent will be entitled to draw a monthly maintenance of `4,000/- from the date of petition till February 2012 and thereafter at the rate of `6,500/- for the subsequent periods.
In the result, R.P.(FC).254/2014 is allowed in part modifying the impugned order, dated 10.6.2014 of Family Court, Thrissur in M.C.291/2002 reducing the monthly maintenance of the 1st respondent wife to `4,000/- from the date of M.C. petition till February 2012 and `6,500/- thereafter for the subsequent periods. In respect of the 2 nd respondent minor son, he will recover `3,000/- per month from the revision petitioner from the date of M.C. petition till the month of December 2012.
Sd/-
T.V.ANILKUMAR, JUDGE Bb [True copy] P.A to Judge