Kerala High Court
Leela Devi vs Subramanian on 3 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 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941
RP(FC).No. 105 of 2017
M.C.NO.17/2015 of FAMILY COURT, PALAKKAD, DATED 28-07-2016
REVISION PETITIONER/COUNTER PETITIONER:
LEELA DEVI,
AGED 53 YEARS, D/O.RAJAN,'VILAYODI',
CHITTUR,NALLEPULLY,PALAKKAD,PIN-678103.
BY ADV. SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENT/PETITIONER:
SUBRAMANIAN,
S/O.NARAYANAN,AGED 62 YEARS,KOLLAMPURATH HOUSE,(POST)
PARLI,THENUR,PALAKKAD DISTRICT,PALAKKAD-678612.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON
28.3.2019, THE COURT ON 03.04.2019 PASSED THE FOLLOWING:
RP(FC).No. 105 of 2017 : 2 :
T.V.ANILKUMAR, J.
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R.P.(FC)No.105 of 2017
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Dated this the 3rd day of April, 2019
ORDER
Revision petitioner is the former wife of the respondent. She is aggrieved by the order dated 28.7.2016 passed by the Family Court, Palakkad in M.C.17/2015 filed by the respondent, former husband under Section 127(1) of the Code of Criminal Procedure (for short 'the Code'), cancelling award of monthly maintenance of `1,500/- already granted to her on a former occasion.
2. Monthly maintenance of `1,500/- was fixed by the Family Court, Palakkad as per award dated 19.4.2010 in M.C. 202/2008. I was told during the course of the argument that being aggrieved by the order in M.C.202/2008, she had sought to enhance the rate of maintenance and filed R.P. (FC).207/2010 which is still pending in one of the Benches of this court.
3. After the award in M.C.202/2008 was passed, the RP(FC).No. 105 of 2017 : 3 : respondent herein filed M.C.17/2015 on 21.1.2015, seeking to cancel the award of maintenance in M.C.202/2008 on the ground that the revision petitioner was not entitled to receive any amount of maintenance from him in as much as substantial changes have occurred in the life of the parties. He ceased to be an employee of Cochin Shipyard and became a pensioner, his monthly pension being limited to a paltry amount of ` 1,620/-. On the other hand, she acquired a building and is earning `5,000/- per month as income in terms of rent drawn from the building. Besides the source of rent, she is earning additional income from money lending business also. The petitioner herein opposed the prayer for cancellation sought under Section 127(1) of the Code. The court below, after conducting enquiry which consisted of examination of parties and scrutiny of documents, came to a conclusion that the award of maintenance granted in M.C.202/2008 required to be cancelled with effect from 21.1.2015. The correctness of this order is under challenge in this revision.
4. The court below, after examining the evidence RP(FC).No. 105 of 2017 : 4 : before it, found that the revision petitioner was getting `5,000/- per month towards rent from a building which she had leased out to a tenant. Ext.P3 lease deed dated 21.4.2012 was relied on in this respect. Her contention that it belonged to her sister, and it was already sold, was held to be not proved. I do not find any reason to disagree with the view taken by the court below in this respect. The fact that respondent is a pensioner was also proved before the court below and his monthly pension stands confined to `1,620/-. According to the court below, the income of the respondent stood sufficiently reduced whereas the income on the basis of which monthly maintenance was fixed in M.C.202/2008, stood substantially increased. I fully agree with the view taken by the court below that there is substantial change of circumstance in favour of the revision petitioner.
5. But then, the question arises as to whether the Family Court was justified in cancelling the order of maintenance in M.C.202/2008. In my view, Section 127(1) of the Code did not give power to the court below to cancel the order on the premise of change of circumstances that RP(FC).No. 105 of 2017 : 5 : occurred in the life of the party receiving the monthly maintenance. Section 127 (2) and (3), however, provide for circumstances when cancellation could be ordered by the court. But those circumstances do not exist in the present case nor pressed into service by the petitioner in M.C. 17/2015. On proof of change of circumstances under Section 127(1), the court gets power only to alter the amount of maintenance being received by the party and the power never extends to cancelling the award of maintenance as a whole. This is because the respondent, former husband has inescapable liability to maintain her in terms of Section 125 of the Code. The basic legal liability can never be relaxed or disowned merely because circumstances leading to increase or decrease in the income changed. Therefore, the order cancelling the award passed in M.C.17/2015 is wrong and illegal. It requires to be partly interfered with to the extent it wholly cancelled the order.
6. The original award granting maintenance to the revision petitioner was passed in M.C.82/98 under Section 125(1) of the Code. Later, the original award was revised on RP(FC).No. 105 of 2017 : 6 : subsequent occasions following the subsequent changes established by the respondent invoking Section 127(1) of the Code. She was receiving `700/- per month till the enhanced monthly maintenance of `1,500/- was fixed as per award dated 19.4.2010 in M.C.202/2008 to take effect from 19.6.2008. In my opinion, the liability of the respondent shall stand altered and reduced to a sum of `700/-, the same being the amount of maintenance which the revision petitioner was receiving immediately before the award in M.C.202/2008 was passed.
7. A doubt was raised as to whether the court below was justified in entertaining M.C.17/2015 at a time when the impugned award of monthly maintenance passed in M.C. 202/2008 is pending challenge in R.P.(FC).207/2010 at the instance of the revision petitioner. After hearing both sides, I am of the opinion that the pendency of R.P.(FC)207/2010 does not at all affect the jurisdiction of the court below to take up M.C.17/2015 and decide it in accordance with law. If at all R.P.(FC)207/2010 is disposed of ordering enhancement of maintenance in favour of the revision petitioner also, the RP(FC).No. 105 of 2017 : 7 : amount of liability of the respondent will stand determined only with reference to the state of affairs as on 19.6.2008, i.e. the date on which M.C.202/2008 was instituted. The alteration of maintenance allowed as per order in M.C.17/2015 will take effect only from 21.1.2015 being the date of institution of the said MC. Therefore, there is no situation of any conflicting orders being brought into existence affecting the parties in the proceedings. On re-appreciating the evidence on record and taking into account the substantial reduction of monthly income of the respondent and also the increase in the monthly income of the petitioner, I am of the opinion that the monthly rate of maintenance fixed as per order in M.C 202/08 shall be altered and reduced to an amount of `.700/- with effect from the date of institution of M.C.17/2015.
In the result, R.P.(FC)105/2017 is partly allowed limiting the liability of the respondent for monthly maintenance only to a sum of `700/- with effect from 21.1.2015. The revision petitioner will recover `.700/- from the respondent towards monthly maintenance with effect from 21.1.2015. The RP(FC).No. 105 of 2017 : 8 : impugned order dated 28.7.2016 in M.C.17/2015 is set aside to the extent it cancelled the entire award in M.C.202/2008. The award in M.C.202/2008 is restored limiting the liability of the respondent only for a monthly sum of `.700/- as made clear above.
Sd/-
T.V.ANILKUMAR, JUDGE Bb [True copy] P.A to Judge