IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 RPFC.NO. 203 OF 2009() ----------------------------------- MC.291/2008 OF FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- BABU JOSEPH @ EMMANNUAL JOSEPH, S/O.JOSEPH, KUNNATHOTTATHIL HOUSE, THARIYODU AMSOM DESOM, BAIBILAND P.O., VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SMT.CELINE JOSEPH RESPONDENT(S): PETITIONER -------------------------------------------- JAISAMMA @ GRASAMMA, D/O.JOSEPH, MATTATHIL HOUSE, KOORACHUND AMSOM DESOM, P.O.MADUNADU, PERAMBARA VIA, KOZHIKODE DISTRICT. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(F.C.) No.203 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of July, 2009 O R D E R -------------- Heard learned counsel for petitioner. 2. This revision is in challenge of the order passed by learned Judge of the Family Court, Kozhikode in M.C No.291 of 2008 directing maintenance to respondent and her son at the rate of Rs.1,000/- each per month. Petitioner married respondent on 27.12.1993 and it is admitted that the child was born in that wedlock on 6.10.1994. Husband and wife lived together for sometime and difference of opinion erupted between them. Alleging that petitioner refused and neglected to maintain respondent and her son, respondent filed O.P. No.151 of 2006 for recovery of money and ornaments which allegedly belonged to her. Petitioner replied by filing O.P. No.622 of 2007 for dissolution of marriage on the ground of desertion. It is not disputed that O.P. No.622 of 2007 was allowed. In the year, 2008 respondent filed petition claiming maintenance. Petitioner contended that respondent is not entitled to get maintenance since without sufficient reason she had withdrawn from his company and based on that he was granted a decree of dissolution of marriage in O.P. No.622 of 2007. He also disputed his capacity to pay maintenance as alleged R.P(FC) No.203 of 2009 -: 2 :- by the respondent. Negativing his contentions court below passed the impugned order. It is contended by learned counsel that definition of the word “wife” given in Sec.125(1) Explanation (b) of the Code of Criminal Procedure (for short, “the Code”), includes a woman who has been divorced by or has obtained divorce from her husband and has not remarried and hence that Explanation must apply in the case of sub-sec (4) of Sec.125 of the Code as well. Learned counsel contends that it must be taken that respondent though divorced is living away from petitioner without sufficient reason and that disentitled her to claim maintenance in view of Sec.125(4) of the Code. Reliance is placed on the decision in Bhagwan Raoji Dale v. Sushama @ Nanda Bhavan Dale and Another (1999 (1) HLR 579). 3. It is true that the word “wife” is defined in Explanation (b) of Sec.125(1) of the Code. But that Explanation is for the purpose of sub-sec.(1) of the Sec.125 of the Code. That Explanation cannot be imparted to the expression “wife” occurring in Sec.125(4) of the Code. Reason is that a wife who has obtained divorce or who has been divorced by the husband cannot be directed to stay with the husband. Nor can a divorced wife be said to be living in adultery in the sense that word is understood. This view, a leaned Single Judge of this Court R.P(FC) No.203 of 2009 -: 3 :- has taken in Moni v. Sujatha (1986 KLT 257). There, it was held that a divorced wife is not disentitled from claiming maintenance under Sec.125(1) of the Code for the reason that during the subsistence of marriage she was cruel to the husband and deserted him thereby necessitating a divorce. In this case claim of respondent for maintenance is to be decided as on the date she filed petition in the court below which was much after the order in O.P. No.622 of 2007. She claimed maintenance as a divorced wife and hence question of petitioner contending that before divorce she had deserted him and that disentitled her to claim maintenance did not arise. I am in agreement with the decision of this Court in Moni's case. I am therefore unable to accept the view taken by the Bombay High Court in Bhagwan Raoji Dale's case. Therefore respondent is entitled to get maintenance. 4. The amount awarded to respondent aged 42 years, Rs.1,000/- per month cannot be said to be excessive to meet her essential requirements. Same is the case of respondent's son aged 11 years. They require expenses for basic needs such as food, clothing, medicine, etc. Apart from that the lady has to meet the educational expenses of her son. Total amount awarded to the R.P(FC) No.203 of 2009 -: 4 :- respondent and her son is Rs.2,000/- per month. I am not inclined to think that amount awarded is excessive. 5. So far as capacity of petitioner is concerned, learned counsel contends that petitioner is a labourer and gets only Rs.2,000/- per month. It is not disputed that petitioner is below fifty years. It is not shown that he is incapable of earning on account of any infirmity. I am not inclined to think that Rs.2,000/- is beyond his capacity taking into account the labour charges payable in this part of the State of Kerala. No interference is required at the instance of petitioner. Revision is without any merit and is liable to be dismissed. Revision Petition is dismissed. THOMAS P.JOSEPH, JUDGE. vsv