IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 RPFC.No. 50 of 2009() --------------------- MC.45/2007 of the Family Court, Kozhikode .................... REVISION PETITIONER/RESPONDENT:- ------------------------------------------------------- THIYYAKANDI RAMACHANDRAN, S/O.LATE KOLASERI VELAYUDHAN, KOLASSERI PARAMBA, MEENCHANDA, VATTAKKINAR, KOZHIKODE,P.O.ARTS COLLEGE, PANNIYANKARA PSL. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): PETITIONER:- --------------------------------------------- 1. SHEENA, D/O.LATE PARAMBATH BALAN, VIRUTHISSERI VAYAL,ELATHUR P.O.PUTHIYANGADI, KOZHIKODE. 2. RISHEK, AGED 16 YEARS,MINOR. 3. ANEESH, AGED 14 YEARS,MINOR. ADV. SMT.LATHA PRABHAKARAN FOR R1TO R3 SRI.K.M.JAMALUDHEEN FOR R1 TO R3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = R.P.(FC).No.50 of 2009. = = = = = = = = = = = = Dated this the 2nd day of December, 2009. O R D E R The Family Court, Kozhikode in MC.No.45/2007 by order dated 6.5.2008, directed the revision petitioner to pay monthly maintenance at the rate of Rs.750/- each to respondents 1 and 2, and at the rate of Rs.500/- to the 3rd respondent under Section 125 of the Code of Criminal Procedure. Assailing the legality, correctness and propriety of that Order, this Revision Petition was filed. 2. It is admitted that the first respondent is the divorced wife of the revision petitioner and that respondents 2 and 3 are the children of the revision petitioner born in the wedlock with the first respondent. It is also admitted that now the relationship between the revision petitioner and the first respondent was dissolved by the order on a joint petition before the Family Court. Thus, R.P.(FC).No.50 of 2009. -: 2 :- the first respondent is the divorced wife. One of the contentions that was urged by the revision petitioner is that at the time of filing of the joint petition under Sec.13-B of the Hindu Marriage Act for divorce, the first respondent had given up her claim for maintenance. Neither the order of the Family Court granting divorce, nor any document was produced to show that the first respondent had at any time given up the claim for maintenance. It is crucial to note that the revision petitioner had not advanced any contention before the trial court or any evidence was let in to that effect. Since such contention was not taken before the trial court, it is not at all entertainable for the first time in revision. Adding to that there is no material to conclude that the first respondent had at any time given up the claim for maintenance. The liability to provide maintenance to respondents 2 and 3 is not challenged. 3. The learned counsel for the revision petitioner submitted that expanding the term 'wife' mentioned in R.P.(FC).No.50 of 2009. -: 3 :- Sec.125 Crl.P.C. by including divorced wife through an explanation is against the object of the legislation. It was further argued that the term ‘wife’ mentioned in Sec.125 refers only to wife and no other category can be brought into. In support of his argument the learned counsel had relied upon the decision reported in Savitaben Somabhai Bhatiya v. State of Gujarat [2005(2) KLT 65 (SC)]. At para.18 it is stated that: “[t]he legislative intent being clearly reflected in S.125 of the Code, there is no scope for enlarging its scope by introducing any artificial definition to include woman not lawfully married in the expression 'wife'.” That is a case relating to the claim by a woman who was alleged to have been married by a man with a living wife in an earlier marriage. It is in the above factual background the Apex Court observed that wife does not include a woman who is not lawfully married and that the scope of Sec.125 Crl.P.C. can't be enlarged by introducing artificial definition to include woman not lawfully married in the R.P.(FC).No.50 of 2009. -: 4 :- expression 'wife'. Facts of this case has no similarity with the facts of the reported case. The ruling in that case can no way be applied to the case on hand. 4. Going by Sec.125 of the Code of Criminal Procedure and the Explanation there to, I find that explanation to Sec.125 of the Code of Criminal Procedure, in fact, does not include any other category of person to the term wife. It only explain that the wife mentioned in Sec.125 would also include a woman who has been divorced or had obtained divorce and has not remarried. It only extends the liability of the husband to maintain his divorced wife till she gets remarried and no other category of woman, who is otherwise married or any concubine. 5. The contention that was advanced has been rejected by this Court in Valsala v. Surendran (1979(KLT 160), Sadasivan Pillai v. Vijayalakshmi (1987(1) KLT 381) and Balan v. Visalakshy (1985 KLT 967). In Balan’s case it was also held that the status is not dependent upon R.P.(FC).No.50 of 2009. -: 5 :- the mode of divorce. 6. Such being the status of the parties and the rights, I find little reason to accept the argument advanced by the learned counsel for the revision petitioner. The first respondent being a divorced wife she would come within the ambit of Explanation (b) to Sec.125 of the Code of Criminal Procedure and is entitled to get maintenance. 7. Though the revision petitioner had got a case that the first respondent had properties and she is getting income, there is no material to come to the conclusion that the respondents are having any source of income. The revision petitioner cannot escape from the liability to maintain the respondents. Respondents 2 and 3 were aged 14 and 12 respectively as on the date of the petition. Taking into account the value of the essential commodities and the need of the respondents, the quantum of maintenance awarded by the trial court is not at all excessive. In fact, it is on a lower side. The revision R.P.(FC).No.50 of 2009. -: 6 :- petitioner has got a contention that he is an Electrician, getting income of Rs.125/- only per day. That argument is devoid of any merit. Now-a-days, even coolies are getting higher wages. The revision petitioner can find out means for providing minimum requirement to the respondents. The amount awarded by the trial court is not beyond the means of the revision petitioner. No interference is warranted in the impugned order. In the result, this revision petition is dismissed. P.S.GOPINATHAN, JUDGE. Kvs/-