IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 RPFC.No. 172 of 2009() ---------------------- MC.360/2007 of FAMILY COURT, ERNAKULAM .................... PETITIONER/(PETITIONER IN THE FAMILY COURT): ---------------------------------------------------------------------------- SUDHA R.PAI,D/O.RAJENDRA PAI, SOORAJ NIVAS,C.C.9/986, MANTHRA ROAD,KOCHI-2. BY ADV. MR.S.SACHITHANANDA PAI RESPONDENT(S): RESPONDENTS: --------------------------------------------------- 1. SOMANATHA PAI,S/O.NARAYANA PAI, CHERAKKULAM HOUSE,PARAVOOTHARA MURI, NORTH PARUR P.O. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. MR.DINESH R.SHENOY R2 BY SR. PUBLIC PROSECUTOR MR. BENNY VARGHESE THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.172 OF 2009 ............................................. Dated this the 12th day of March, 2010. O R D E R This revision is preferred against the order of the Family Court, Ernakulam in M.C.No.360/2007. The wife moved an application against the husband for maintenance and the family court has dismissed the same and it is against that decision, the present revision is filed. 2. Heard the learned counsel for both sides. It is contended by the learned counsel for the revision petitioner that the family court was not justified in negativing the maintenance to the wife, whereby the other side would contend that the conduct of the revision petitioner itself would reveal that she is not entitled for maintenance. 3. The unfortunate couple got married on 11.4.1996 and the matrimonial relationship subsisted till 13.4.1996 ie., for two days. Thereafter the wife was taken to her parental home by the members of her family and the husband also did not take any steps to get back her to the matrimonial home. But, the husband moved an application before the family court requesting to declare the marriage as null and void. It : 2 : R.P.(F.C).No.172 OF 2009 has ended in dismissal and an appeal preferred against the same also has been dismissed as not pressed. Meanwhile during the pendency of this case, the husband moved an application for divorce and that has been granted by the family court. That was an ex parte decision. The said decision dissolving the marriage had taken place on 16.2.2000 and the maintenance case was filed in the year 2007. 4. The learned counsel for the respondent would contend that only on account of the same, notice being received from the adalath, movements were initiated to file an MC and therefore there is no bonafide and she was totally aware of the fact that divorce has been granted. As far as the evidence is concerned, nothing is there to show about the mental illness of the person and as the divorce was taken place on 16.2.2000, her status will be that of a divorced wife. Under the provisions of the Criminal Procedure Code, the wife is dis-entitled to get maintenance when she is living in adultery or when she had left the matrimonial home without any reasonable cause or the husband and wife had decided by mutual consent to live separately. The definition : 3 : R.P.(F.C).No.172 OF 2009 of wife takes in a divorced wife as well. But when a wife is divorced, the question of living by mutual consent or to live separately with reasonable cause etc does not arise for consideration for the reason that she is no more the wife of that person. So it has also to be stated that there is no case for the respondent as well on this line. So it is the divorced wife who is claiming the maintenance. When a divorced wife is claiming maintenance unless it is established that she has got the means to look after herself, the maintenance cannot be denied until she is remarried. Equally important question is regarding the capacity of the person to pay the amount. The court has to consider between the necessity as well as the capacity and strike the balance in between the two to arrive at a figure. 5. Therefore I feel that the matter has to be considered in that angle and as the status of the wife as on today is that of a divorced wife, she can claim maintenance provided, she satisfies the ingredients under Section 125 of Cr.P.C. 6. Therefore I set aside the order of the family court : 4 : R.P.(F.C).No.172 OF 2009 and remit the case back to family court with a direction to permit both the parties to adduce evidence in respect of the wife that she has no means and as far as the husband is concerned his capacity to pay maintenance and then dispose of the matter in accordance with law. Parties are directed to appear before the family court on 21.4.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : R.P.(F.C).No.172 OF 2009