RAJESH S/O. NARAYANANKUTTY v. BABY GIRIJA D/O. VESU
2017-02-08
RAJA VIJAYARAGHAVAN V.
body2017
DigiLaw.ai
ORDER : 1. This Revision Petition is filed by the respondent in M.C.No.326 of 2013 on the file of the Family Court, Palakkad. Under challenge is the order dated 11.5.2016 by which the petition filed by his wife under Section 125 of the Code of Criminal Procedure was allowed and the petitioner was directed to pay maintenance at the rate of Rs.5,000/- per mensem from the date of filing of the petition. 2. In the petition filed before the court below, the respondent had contended that her marriage with the petitioner was solemnized on 29.1.2012. It was the second marriage of the petitioner. His former wife had expired leaving behind two daughters. The elder daughter was studying in the 11th standard and the younger one in the 5th standard. The parents of the petitioner had given 25 sovereigns of gold at the time of marriage. A few months into the marriage, the petitioner and his mother started harassing the respondent and she was told that her parents had not given enough gold ornaments. The petitioner is financially well off than the respondent. Her gold ornaments were taken away and it came to light in course of time, that he was maintaining relationship with other women. On 20.3.2013, the respondent was assaulted and she was forced to go back to her parental home. Later, mediation was conducted and she returned back to the petitioner and started residing with him. According to the respondent, ill-treatment continued. An attempt was made to bring another lady to their house. When the petitioner stood in the way, she was sent out from the matrimonial home. On 3.6.2013, she left the petitioner and started living with her parents. She is unable to maintain herself. On the other hand, the petitioner is a successful businessman and is the dealer of AVT products. He is running a business in the name and style as 'Aparna Enterprises' and earns not less than Rs. One lakh per mensem. In the petition, she prayed that she be granted maintenance at the rate of Rs.10,000/- per mensem. 3. The petitioner entered appearance and filed objection countering the contentions of the petitioner. He denied that he had ill-treated the respondent. According to the petitioner, the respondent is a lesbian and she was not interested in having a sexual relationship with him.
In the petition, she prayed that she be granted maintenance at the rate of Rs.10,000/- per mensem. 3. The petitioner entered appearance and filed objection countering the contentions of the petitioner. He denied that he had ill-treated the respondent. According to the petitioner, the respondent is a lesbian and she was not interested in having a sexual relationship with him. On the other hand, he has reason to suspect that the respondent had made advances towards his daughters. He denied that he was having relationship with other women. It was specifically contended that the respondent is a educated person who initially had worked as a nursing assistant at the K.G. Hospital. Later, she worked for a short while as a receptionist at Tirupur and has thereafter worked as a nursing assistant at Ahalya hospital. He denied that he was running a dealership of AVT products and also denied that he was earning in excess of Rs. One lakh per mensem. According to him, he was only lending coffee machines to others and using the said meager income he has to look after his aged parents. 4. Before the court below, on the side of the respondent, PWs 1 and 2 were examined. On the side of the petitioner, he entered the box and gave evidence as RW1. Ext.B1 and X1 were marked. 5. On a consideration of the materials available, the Family Court came to the conclusion that the respondent was entitled to get maintenance at the rate of Rs.5,000/- per mensem. The said order is under challenge. 6. The learned counsel appearing for the petitioner submits that the respondent had failed to plead and prove that she was living separately from the petitioner for any sufficient reason. According to the learned counsel that was a sufficient enough ground to reject the petition filed by the respondent. It is further urged that at the time of giving evidence, it was admitted by the respondent that she was working as a Nursing Assistant and was getting income. In the said circumstance, it was for the respondent to plead and prove that even after securing employment she was still unable to maintain herself and required supplemental income from the petitioner. Finally, it is submitted that the Family Court had committed a grave error in ignoring the evidence adduced and thus has arrived at a wrong finding. 7.
In the said circumstance, it was for the respondent to plead and prove that even after securing employment she was still unable to maintain herself and required supplemental income from the petitioner. Finally, it is submitted that the Family Court had committed a grave error in ignoring the evidence adduced and thus has arrived at a wrong finding. 7. The counsel appearing for the respondent, on the other hand, submitted that the petitioner was a successful businessman earning handsome income from his various establishments. He had admitted that he is an income tax payee and was having licence to deal with various products and also had a TIN number. He was the owner of expensive cars and several buildings. All these aspects were suppressed from the court. According to the learned counsel, the wife is not expected to live in poverty after she is ejected from the matrimonial home. The mere fact that she secured an employment for sustaining herself on being neglected by the husband will not dis-entitle her from claiming maintenance. It is finally submitted that the court below has evaluated the evidence meticulously and have arrived at a finding which is not liable to be interfered in revision. 8. I have considered the submissions advanced and have gone through the evidence as well as the impugned order. 9. The specific case of the respondent is that she was ill-treated by the petitioner and his mother. She was allegedly sent out from the house on 3.6.2013 and thereafter the petitioner refused to maintain her. In her evidence, she has asserted the nature of harassment, both mental and physical, meted out to her. Though the petitioner has alleged that the respondent had misbehaved with his daughters, no evidence has been let in to substantiate the above allegation. The main contention advanced before this Court is that the respondent was working as a Nursing Assistant in the Ahalya Hospital and therefore, she is not entitled to maintenance. The respondent has properly explained the circumstances under which she had joined Ahalya Hospital. In her evidence, she had stated that she studied in the KG Hospital, Coimbatore and earned a Nursing Diploma. Thereafter, she worked in the hospital for three years prior to her marriage. After marriage, she left the job and was staying with the petitioner at Palakkad. This aspect is not denied by the petitioner.
In her evidence, she had stated that she studied in the KG Hospital, Coimbatore and earned a Nursing Diploma. Thereafter, she worked in the hospital for three years prior to her marriage. After marriage, she left the job and was staying with the petitioner at Palakkad. This aspect is not denied by the petitioner. It is borne out from the pleadings and evidence that the respondent was ejected from the matrimonial home on 3.6.2013 and it appears that the petition seeking maintenance was filed on 23.8.2013. At the time of tendering evidence, on 27.3.2015, she fairly admitted that she started going to the Ahalya Hospital from about 2 months back. The respondent is not expected to starve or to live in penurious circumstances after being neglected by the husband. She waited for almost two years before searching for and securing an employment as a Nursing Assistant. This by alone will not disentitle her from claiming maintenance from her husband, who admittedly is living in a affluent circumstances. It was brought out in evidence that he was running a business establishment by name 'Aparna Enterprises' in a two storied building owned by him. He is the owner of several vehicles. He has extensive paddy lands of his own. He admits that he has not paid a single paise after the respondent had started residing separately. He has admitted that the respondent was unemployed while she was staying with him and was solely depending on him. He has admitted that he has licence to sell tea, coffee, edible oil and soap. He denied when he was asked he was the sole authorized distributor of AVT products in Palakkad. He admitted that he is an Income Tax payee, but feigned ignorance when he was asked about his income for the previous year. Thus it is clear from his evidence that he is living in affluent circumstances. He did not care to disclose his full income, which he alone was in a position to disclose. It can easily be presumed that the assertion of the wife that he was earning a handsome income was true. Having regard to all these aspects, the finding of the court below that the respondent having secured an employment recently cannot be taken as a ground to deprive her from maintenance is based on materials on record and does not warrant any interference.
Having regard to all these aspects, the finding of the court below that the respondent having secured an employment recently cannot be taken as a ground to deprive her from maintenance is based on materials on record and does not warrant any interference. I am of the view that the respondent has been able to successfully show that she was entitled to realize maintenance from the petitioner. 10. Now regard to the quantum of maintenance. Though the respondent had claimed a sum of Rs.10,000/-, the court below has granted only a sum of Rs.5,000/-. Obviously, this was taking note of the meager income that the respondent would have been getting from her job as a Nursing Assistant in a hospital. It will be far fetched to believe that the respondent would forego her comforts which she was enjoying while staying with the petitioner and would stay separately if it was not for the ill-treatment which she claims that she was subjected to. The court below has taken into consideration the needs of the respondent and also the paying capacity and circumstances of the petitioner. It is obvious that the court below had due regard to the status of their respective families, their standard of living earlier enjoyed, comfort enjoyed by them during their stay together and other circumstances. The sum of Rs.5,000/- granted by way of maintenance in the said circumstances cannot be said to be excessive so as to enable the respondent to live in luxury and make her separate living profitable. The quantum cannot be said to be inequitable or unjust. Having regard to the above, I am of the view that the quantum of maintenance ordered is just and proper. In the result, I find no reason to interfere with the findings of the court below. There is no merit in this revision. The same is dismissed. However, it is made clear that the parties shall be at liberty to file appropriate petition under Section 127 with due proof of change of any of the circumstances.