IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 RPFC.No. 101 of 2008() ---------------------- MC.87/2005 OF THE FAMILY COURT, KOTTARAKKARA .................... PETITIONERS(1ST PTNR.IS SHOWN IN THE COMMON JUDMT) ------------------------------------------------------------------- 1. JAYANTHI KUMARI, GOVINDA MANGALAM VEEDU, KIZHAKKEKARAYIL, KUNNATHOOR VILLAGE, KUNNATHOOR TALUK. 2. AMAL (MINOR) OF -DO- -DO- REPRESENTED BY MOTHER AND GUARDIAN 1ST PETITIONER. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENTS: ------------- ANILKUMAR, MEDAYIL VEEDU, ANAKKOTTOOR MURI,NEDUVATHOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.SAJU.S.A FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 101 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of August, 2008 O R D E R The petitioners are the claimants in a petition filed under Section 125 Cr.P.C. against the respondent. The learned Judge of the Family Court, by the impugned order, rejected the claim for maintenance of the first claimant/wife under Section 125 Cr.P.C., but directed payment of an amount of Rs.500/- p.m. to the second claimant/son from the date of the petition. The petitioners claimed to be aggrieved by the rejection of the claim for maintenance of the wife as also the quantum of Rs.500/- p.m. awarded to the child. 2. Marriage is admitted. Paternity is conceded. Separate residence is not disputed. In response to the claim under Section 125 Cr.P.C. there is not a whisper of an offer by the husband to maintain his wife on condition that she lives with him. Instead, it is seen that he made allegations against her that she had a pre- marital illicit intimacy with a paramour and that she continued R.P.F.C.No. 101 of 2008 2 such relationship even after the marriage and child birth. The claim under Section 125 Cr.P.C. was considered along with two other matters. The first was a petition for divorce filed by the wife on the ground of cruelty. The other was a claim filed by the wife for return of ornaments and cash, which the husband was allegedly retaining with him. 3. The parties went to trial on these contentions. Pws. 1 to 4 were examined on the side of the claimants, whereas Dws. 1 to 5 were examined on the side of the respondent/husband. Exts.A1 and B1 to 6 were marked as documents of the parties, whereas Exts.X1 to X4(c) were marked as court exhibits. 4. The learned Judge of the Family Court came to the conclusion that the wife is entitled for divorce on the ground of cruelty. Decree for divorce was passed. That decree has now become final without challenge, it is submitted at the Bar. The claim for return of ornaments etc. was allowed in part. The husband has not challenged that order. The wife has challenged that order in proceedings before this Court, which is pending, it is submitted. R.P.F.C.No. 101 of 2008 3 5. The counsel have advanced detailed arguments. The learned counsel for the claimants contends that the impugned order passed by the learned Judge of the Family Court is grossly incorrect and the same warrants interference. At any rate, divorce having been granted, the learned Judge must have held that from the date of divorce the claimant wife is entitled for maintenance as a divorced wife. In not directing payment of maintenance atleast from the date of petition, the learned Judge has erred grossly, it is submitted. 6. The learned counsel for the claimants further contends that at any rate, having held that the wife is entitled for divorce on the ground of cruelty under Section 13(1(ia) of the Hindu Marriage Act, the learned Judge erred grossly and perversely in coming to the conclusion that the wife does not have sufficient reasons for separate residence. The counsel further points out that it is crucial that at the stage of filing the counter statement, there is not a whisper of an offer from the husband that he is willing to maintain his wife on condition that she lives with him. In the wake of the unsubstantiated contentions raised of unchaste behaviour on the part of the wife, it must have been R.P.F.C.No. 101 of 2008 4 held, at any rate, that the wife is entitled for separate maintenance during the pendency of the petition also, submits the counsel for the petitioners. 7. Thirdly the counsel submits that the uncontroverted evidence in the case shows that the husband is employed as a Security Guard. The assertion that he gets an income of Rs.4,500/- p.m. is not even controverted by the husband in the pleadings or in the evidence. There is no specific denial of such employment of his. Significantly there is no contra version asserted that he is getting income less than Rs.4,500/- p.m. The husband has neither pleaded nor tendered any evidence on that aspect. In these circumstances the court must have awarded an amount of Rs.750/- p.m. claimed as maintenance for the child. 8. I have considered all the contentions raised. I take note of the fact first of all that there is no offer whatsoever made in the counter statement that the husband is willing to maintain the wife on condition that she lives with him. The wife did not therefore have occasion to advance her plea or adduce any evidence about the ground for separate maintenance. It is true that in the box while tendering evidence the R.P.F.C.No. 101 of 2008 5 husband had made an offer to maintain the wife on condition that she lives with him. That offer must certainly be held to be without any bonafides and must have been ignored and eschewed by the court below. 9. I am satisfied, in these circumstances, that the rejection of the claim for maintenance of the wife is totally unjustified. It will be apposite straight away to note that on the evidence placed before court the learned Judge had taken the view that the wife is entitled for divorce on the ground of cruelty. In the wake of that finding, the conclusion of the learned Judge that the wife is not justified in her separate residence must be held to be grossly erroneous and perverse. I am satisfied that the rejection of the claim for maintenance of the wife is not justified at all. 10. I do find merit in the contention of the counsel for the petitioners that at any rate divorce having been granted to the wife, the learned Judge must have granted maintenance to the wife as a divorced wife after the decree for divorce. Maintenance, I agree with the learned counsel, must at any rate have been granted from the date of the decree for divorce. R.P.F.C.No. 101 of 2008 6 11. Coming to the question of maintenance awarded, I agree with the learned counsel for the petitioners that the quantum of maintenance awarded for the child is too meager and is not justified by evidence available about the means of the husband/father. He gets an amount of Rs.4,500/- p.m. and I am of the view that the claim made by the claimant child in 2002 – an amount of Rs.750/-p.m. - is absolutely justified and the same must have been awarded by the learned Judge. 12. Coming to the quantum of maintenance payable to the wife, though there is an assertion that the wife has income from employment there is total absence of evidence on that aspect. There is evidence to show that the wife had an amount of Rs.74,000/- deposited in her name when proceedings commenced, but she had withdrawn that amount during the pendency of the proceedings. The wife has not chosen to explain how she had utilised the amount. Taking the totality of circumstances into account, I am satisfied that the wife need not be awarded any maintenance till the date of the impugned order. From that day, even going by the case of the husband, he is bound to pay maintenance to the wife, she having become entitled as a divorced wife R.P.F.C.No. 101 of 2008 7 for maintenance from that date. I am satisfied that from the date of divorce the claimant wife can be awarded maintenance at the rate claimed by her – Rs.1,000/- p.m. 13. The learned counsel for the respondent has fairly accepted that there is no offer from the husband to maintain the wife on condition that she lives with him. The counsel has further accepted that in the light of the decree for divorce, which has become final, the liability of the husband to pay maintenance from the date of decree cannot possibly be challenged. 14. This R.P.F.C. is accordingly allowed. The rejection of the claim for maintenance of the wife is set aside and it is directed that the respondent shall pay maintenance to the first petitioner/wife at the rate of Rs.1,000/- p.m. from the date of the impugned order i.e. 26.11.2007. The amount of maintenance awarded to the second claimant/son is enhanced to Rs.750/- as claimed and the direction that such payment shall be made with effect from the date of the petition i.e. 7.12.2002 is upheld. R.P.F.C.No. 101 of 2008 8 15. I make it clear that the quantum is fixed on the basis of the state of affairs as on the date of the petition and parties shall be entitled to claim alteration on the basis of that assumption – that the quantum is fixed as on the date of the petition. (R. BASANT) Judge tm