IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 RPFC.No. 496 of 2007() ---------------------- MC.161/2004 of FAMILY COURT, ERNAKULAM .................... PETITIONERS: -------------------- 1. SINDHU P.A,D/O.THANKAPPAN,AGED 31, PUTHIYADATH HOUSE,EDAYAR P.O,KOOTHATTUKULAM, ERNAKULAM DISTRICT. 2. VYSHAKH,S/O.SINDHU AGED 6 1/2, PUTHIYADATH HOUSE,EDAYAR P.O,KOOTHATTUKULAM, ERNAKULAM DISTRICT.REPRESENTED BY HIS MOTHER IST PETITIONER - SINDHU P.A BY ADV. SRI.G.KRISHNAKUMAR SRI.M.K.MURARI RESPONDENT(S): --------------- VIJI P.K (VIJIDHARAN), S/O.KRISHNAKUMAR KUTTY, PARATHAZHATHU HOUSE,VILANGOOR, CHENNAYAPPARA P.O,PEECHI,THRISSUR DISTRICT- PIN- 682 308. ADV. SRI.G.SREEKUMAR (CHELUR) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 25/11/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.496 of 2007 ---------------------------------------- Dated this the 24th day of November 2008 O R D E R The petitioner in this revision petition challenges the rejection of the claim for maintenance of the first claimant/ petitioner/wife and the amount ordered to the second claimant/child under Section 125 Cr.P.C. 2. Marriage and paternity is admitted. Admittedly the relationship/marriage stands terminated by a decree for divorce dated 31/12/2004. At the time when the petition was filed, it appears that the decree for divorce had not been passed. There was an earlier decree for restitution of conjugal rights. That decree has become final. It was not challenged. The wife was residing separately without complying with the decree for restitution of conjugal rights. It is at that stage, the claim petition was filed. 3. In the course of the proceedings, the decree for divorce was passed on 31/12/2004. The respondent/husband re- married and in such re-marriage a child was born for the respondent/husband. The husband resisted the claim for maintenance on the primary ground that the wife was guilty of contumacious non-compliance with the decree for restitution of conjugal rights. It was however contended that the wife was not R.P.F.C.No.496/07 2 unable to maintain herself. She was a nurse by qualification. She had worked as a nurse prior to and subsequent to marriage. In these circumstances, she cannot be held to be a woman unable to maintain herself, it was contended. There was an assertion that the respondent/husband is employed as a radio mechanic in the pleadings. Assertions and counter assertions made about the income of the respondent; but in evidence, the wife asserted that his income is Rs.10,000/- per mensum. There is no specific challenge against that assertion in the course of cross examination. 4. The learned Judge of the Family Court came to the conclusion that the wife is not entitled for separate maintenance. According to the learned Judge, the wife was residing separately without sufficient cause and that had led to separate residence and subsequent divorce. So far as the child is concerned, an amount of Rs.750/- was awarded. 5. The learned counsel for the petitioner submits that in any view of the matter, the claimant/wife is entitled for maintenance from the date of the petition inasmuch as there was no offer made by the husband to maintain her on condition that she lives with him. The learned counsel for the petitioner submits that R.P.F.C.No.496/07 3 the mere fact that the spouses are not residing together cannot lead to the conclusion that the wife is residing separately without just ground or sufficient cause. The learned counsel for the petitioner relies on the decisions in Zeenath v. Sulfiker Ali [2008(3)KLT 757] and Mary M.P. v. V.Varghese [2008(4)KHC 374] to contend that in the absence of an offer on the part of the husband to maintain the wife on condition that she lives with him, the wife cannot be said to have refused to co-habit with the husband notwithstanding the existence of prior decrees for restitution of conjugal rights or judicial separation. 6. According to me, it is not necessary even to go into the nuances of that controversy. Admittedly the marital tie has been put an end to with the decree for divorce with effect from 31/12/2004. That decree has become final. The husband has married again and begotten a child in that relationship. In these circumstances, the wife as a divorced wife is certainly entitled, at any rate, to get maintenance from 31/12/2004. The wife having admittedly been divorced, the cause of that divorce or the contumacious responsibility for such divorce is irrelevant when the claim of a divorced wife for maintenance as a divorced wife is considered. It is by now trite that even when the wife is divorced R.P.F.C.No.496/07 4 on the ground of adultery, her claim for maintenance under Section 125 Cr.P.C shall remain unaffected by the reason for the divorce granted. In these circumstances, the facts that there was a decree for restitution of conjugal rights earlier and the decree for divorce was granted on the ground of non resumption of cohabitation in spite of the decree for restitution of conjugal rights are not at all relevant while considering the liability of the respondent to pay maintenance to the claimant/wife. 7. There is a further contention raised that the wife is not unable to maintain herself. It is significant that there is no specific contention that the wife is at present employed as a nurse. The wife asserted that she is not so employed. No tangible evidence is placed before court to even remotely indicate that the wife is having any employment and consequently is not unable to maintain herself. She was a qualified nurse at the time of the marriage. After marriage, for some period of time, she had worked as a nurse; but her evidence shows and there is no contra evidence that after pregnancy and child birth, she has not been pursuing any avocation. In these circumstances, the mere qualification of the wife and her employment prior to and immediately after marriage cannot be reckoned as sufficient circumstance to throw overboard R.P.F.C.No.496/07 5 her case that she is at present unable to maintain herself. The question has been considered in Muraleedharan v. Vijayalakshmi [2006(3)KLT 635]. I am unable to agree with the learned Judge of the Family Court that the facts in the two cases are so entirely different as to hold that the dictum in Muraleedharan (Supra) is not applicable to the facts of the case. 8. What remains is only the quantum of maintenance to be awarded and the date with effect from which such maintenance is to be awarded. As indicated earlier, the evidence reveals that the respondent is employed as a radio mechanic. Precise evidence about his income is not available. The difficulties of a divorced wife living separately to adduce precise evidence about the quantum of income of her former husband must be realistically taken note of by the court. The learned counsel for the petitioners points out that the assertion on oath by the claimant/wife that the husband gets an income of Rs.10,000/- per mensum has not been specifically challenged in cross-examination. From that simple fact, I am not jumping to the conclusion that he must be earning an income of Rs.10,000/-. However, I am satisfied in the facts and circumstances of this case that even reckoning the respondent as just an able bodied person, the quantum of maintenance ordered to R.P.F.C.No.496/07 6 be paid to the child can be held to be absolutely reasonable, modest and just. The same does not warrant any interference. So far as the claimant/wife is concerned, taking the totality of the circumstances into account, I am satisfied that the direction to pay an amount of Rs.1,250/- per mensum from the date of the divorce, that is 31/12/2004 shall eminently meet the ends of justice. 9. In the result, a) This revision petition is allowed in part. b) The rejection of the claim for maintenance of the first claimant/wife is set aside and the respondent is directed to pay maintenance to the claimant/divorced wife at the rate of Rs.1,250/- per mensum with effect from 31/12/2004. c) The direction for payment of maintenance to the child at the rate of Rs.750/- per mensum is upheld. (R.BASANT, JUDGE) jsr