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2020 DIGILAW 820 (KER)

Ajayan S/o. Haris v. Syama D/o. Ramachandran

2020-10-01

MARY JOSEPH

body2020
ORDER : The revision on hand is filed against an order passed by Family Court, Ottapalam on 08.06.2020 in M.C.No.80 of 2016. The revision petitioner is the respondent and the respondents in the revision are the petitioners in the M.C. before the Family Court. The respondent was aggrieved by the order passed by the Family Court directing him to pay monthly maintenance at the rate of Rs.3,000/- and Rs.2,000/- respectively to the 1st and 2nd petitioners. 2. The facts of the case relevant for disposal of this revision are stated in brief hereunder: For clarity the parties to this revision will be referred to hereinafter as the respondent and the petitioners in accordance with their status in the M.C. before the Family Court. 3. The 1st petitioner and the respondent got married on 11.11.2013 in Kanjiravalli Siva Temple as per the religious rites and customs prevalent in their community. They lived together for sometime in the matrimonial home. On 12.11.2014, the 2nd petitioner, a girl child was born. In the matrimonial home the 1st petitioner was subjected to mental and physical torture by the respondent alleging that she is not good looking and did not bring adequate gold ornaments. The 1st petitioner was hospitalised due to some illness. When she was discharged from the hospital, eventhough the doctor had advised her to take rest, the respondent did not permit her to take rest or to go to her parental home. The parents of the 1st petitioner took her to the parental home. She returned to the matrimonial home after one week but, the parents of the respondent did not allow her to enter into the matrimonial home. Therefore she again returned to the parental home. On the same day the respondent visited the parental home and took her to the matrimonial home. During the 5th month of pregnancy she was subjected to physical and mental harassment by the respondent and his mother by confining her in a room, without even providing her food and other necessaries. During the 7th month of pregnancy the respondent even refused to send her to parental home for delivery. Therefore, finding if difficult to continue the life, she left the matrimonial home. She had also preferred a complaint before Agali police following which crime No.95 of 2015 under Section 498A IPC was registered. The case is pending consideration before Judicial First Class Magistrate Court, Mannarkkad. Therefore, finding if difficult to continue the life, she left the matrimonial home. She had also preferred a complaint before Agali police following which crime No.95 of 2015 under Section 498A IPC was registered. The case is pending consideration before Judicial First Class Magistrate Court, Mannarkkad. From 20.08.2014 onwards, the respondent totally deserted and neglected to maintain her and the child. In the above circumstance, she was constrained to file the case seeking maintenance at the rate of Rs.5,000/- and Rs.4,000/- respectively to herself and the minor child. 4. The respondent had filed counter affidavit in the M.C admitting the status of the 1st and 2nd petitioners as his wife and the child. The respondent had denied the allegation of cruelty. According to him, he was maintaining the wife and the child. According to him, it was the 1st petitioner who had deserted him for her dislike to live in the company of his parents. The respondent has also denied the allegation of the 1st petitioner that he was working as a tailor in a ready made garment shop and was earning Rs.1,500/- as daily wages. According to the respondent he was doing agricultural work and was getting Rs.550/- per day. According to him, the 1st petitioner is working in a private firm and is drawing Rs.10,000/- as monthly income and therefore, he cannot be mulcted with liability to maintain her. The maintenance case was sought to be dismissed, for the reasons. 5. The 1st petitioner and the respondent had tendered oral evidence before the Family Court respectively as PW1 and RW1. Apart from the oral evidence, other evidence was not adduced by either of the parties. The Family Court appreciated the evidence and had concluded on its basis that both the petitioners are entitled to get maintenance from the respondent. The Family Court had fixed the quantum of monthly maintenance payable to the 1st petitioner as Rs.3,000/- and to the 2nd petitioner as Rs.2,000/-. The aggrieved respondent has preferred the revision on hand. 6. According to Sri. M.R. Sasi, the learned counsel for the respondent, the 1st petitioner failed to adduce any evidence to establish her plea that the respondent was getting Rs.1,500/- as daily wages from his job as tailor in a ready made garment shop. The aggrieved respondent has preferred the revision on hand. 6. According to Sri. M.R. Sasi, the learned counsel for the respondent, the 1st petitioner failed to adduce any evidence to establish her plea that the respondent was getting Rs.1,500/- as daily wages from his job as tailor in a ready made garment shop. According to him in a context of total want of evidence regarding monthly income of the respondent that the Family Court had drawn an inference that he was getting Rs.750/- as daily wages. According to him, the fixation of Rs.750/- as daily wages by the Family Court was without any reliable statistics. It is further contended that the 1st respondent was ready to maintain the 1st petitioner if she joins him to continue the matrimonial life and he even extended that offer to her. According to him, the wife had refused that offer as she does not like living in the company of the mother of the respondent and to take care of her. According to him, the refusal of the wife to live with him was without any valid and justifiable reason and therefore, she is dis-entitled to get maintenance from the respondent. According to him, it is highly unreasonable for a wife to insist her husband to drive out his mother from their life as a condition for her living in the company of the husband. 7. Satheesan V. Mony (1979 KHC 105) has also been relied on by the learned counsel to fortify his argument that wife's refusal to live in the company of her husband who offers to maintain her without a cogent reason, dis-entitles her from claiming maintenance from her husband. It is contended by the learned counsel that the Family Court ought to have discarded the claim of the 1st petitioner for maintenance as she left the company of the respondent without a valid and justifiable reason. The learned counsel has also read proviso 2 of Sub-section (3) of Section 125 Cr.P.C. to fortify his argument. 8. It is further contended by the learned counsel that a court exercising jurisdiction under Section 125 Cr.P.C. is under discretion to grant monthly maintenance to the claimant from the date of the application or from the date of the order as it deems fit. 8. It is further contended by the learned counsel that a court exercising jurisdiction under Section 125 Cr.P.C. is under discretion to grant monthly maintenance to the claimant from the date of the application or from the date of the order as it deems fit. According to him, if maintenance was ordered to be paid from the date of the petition, the court ordering it must have issued a speaking order. The learned counsel pointed out that the reasons for issuing such a direction having not been stated in the impugned order, it needs to be set aside. 9. It is also urged by the learned counsel that an order directing interim maintenance having not been passed in the case on hand, by directing to pay monthly maintenance from the date of the petition, the respondent has been shouldered with liability to pay a huge sum as arrears of maintenance. According to him, the respondent being an agricultural labourer is unable to meet the payment of the huge sum that stands in arrears and the Family Court while passing the impugned order ought to have borne that in mind. The learned counsel canvassed for a modification in the matter of payment of arrears of maintenance by substituting the date of the order in the place of the date of the petition. 10. The learned counsel for the petitioners has contended that the 1st petitioner was ill-treated by the respondent and in-laws at the matrimonial home and therefore, she was constrained to live away from the company of the respondent as well as in-laws. According to him, ill-treatment is a cogent reason entitling the wife to reside separated from her husband. According to him, true that the 1st petitioner failed to establish the monthly income of the respondent. According to him, the respondent who has denied to have worked as tailor in a garment company and claimed to have been engaged in agricultural work in lands also failed to establish the same by adducing independent evidence. According to him, in the above context that the Family Court was constrained to infer Rs.750/- as his daily wage as an agricultural labourer and based on that to fix the monthly maintenance as Rs.3,000/- and Rs.2,000/- respectively to 1st and 2nd petitioners. According to him, in the above context that the Family Court was constrained to infer Rs.750/- as his daily wage as an agricultural labourer and based on that to fix the monthly maintenance as Rs.3,000/- and Rs.2,000/- respectively to 1st and 2nd petitioners. According to him, the Family Court is highly justified in fixing the daily wage notionally as Rs.750/- and ordering to pay monthly maintenance as Rs.3,000/- and Rs.2,000/- respectively to 1st and 2nd petitioners. For the reasons, the impugned order is sought to be maintained. 11. 2nd proviso to sub-Section (3) of Section 125 Cr.P.C. is apposite to be extracted hereunder in the wake of the main argument advanced by the learned counsel for the respondent that the wife refusing the offer of the respondent to live in his company is not entitled to get maintenance. “(3) xxxxxx xxxxx PROVIDED FURTHER that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any ground of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation: If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.” 12. It is provided that if a husband offers to maintain his wife and if the latter refuses to live with him, the Magistrate dealing with the case is empowered to consider the grounds of refusal stated by her and if convinced that she is justified in doing so, shall pass an order directing the husband to pay maintenance in disregard of the offer made by him. 13. Sub-Section (4) of Section 125 Cr.P.C. is also relevant in the context: “(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” It is provided under the provision extracted that a wife refuses to live in matrimony with the husband without sufficient reason is dis-entitled to get maintenance from her husband. Therefore, separated life of a wife for a valid cause is recognised by law and that will not stand in the way of raising a claim for maintenance under Section 125 Cr.P.C. 14. The factual situation in the case on hand when viewed in the backdrop of the above legal provisions, it is pertinent to note that Crime No.95/2015 was admittedly registered under Section 498A IPC by the Agali Police at the instance of the petitioner against the respondent and is pending before the Judicial First Class Magistrate Court, Mannarkkad. The crime was registered prior to the filing of the M.C. itself. The allegation of ill treatment having been raised to set the law in motion, prior to the filing of the M.C. itself, it can be taken that the petitioner was ill treated by the respondent and in-laws at the matrimonial home and on account of that valid and justifiable reason, she left their company to lead an independent life. Therefore, the argument advanced by the learned counsel that, the wife's refusal to accept the offer of the husband to live in his company was for her dislike in taking care of his mother who was residing in the matrimonial home is discarded as untenable. Ill-treatment by the husband is a valid reason and having been convinced of the said reason stated by the wife, her refusal to accept the offer of the husband to stay together with him was found justified by the Family Court and accordingly maintenance was ordered to her. Therefore, the Family Court is perfectly justified to the extent it finds that the 1st petitioner is entitled to maintenance under Section 125 Cr.P.C. 15. The question needs consideration is whether the Family court is justified in considering Rs.750/- as daily wages and fixing the monthly maintenance payable to petitioners on its basis. It is pertinent to note that despite raising pleas with reference to the job and income of the respondent, both parties failed to establish the same by adducing independent evidence. During cross examination the respondent has clarified by stating that he is doing agricultural operations in land taken on 'pattam' from others. 16. If that be so, the respondent may be getting reasonable income monthly. During cross examination the respondent has clarified by stating that he is doing agricultural operations in land taken on 'pattam' from others. 16. If that be so, the respondent may be getting reasonable income monthly. However, the Family Court has considered the respondent's claim in his counter statement filed in the M.C. that he was an agricultural labourer and considered Rs.750/- as the daily wage earned by him. The respondent was taken by the Family Court to have work for 25 days in a month and thus his monthly income was fixed as Rs.18,750/- and accordingly, the monthly maintenance was fixed as above. 17. It is established from the evidence on record that the respondent's aged mother is taken care of by him. The Family Court overlooked that factum while fixing the monthly maintenance payable to the petitioners. Therefore, this Court finds justification in reducing Rs.500/- from the monthly maintenance ordered as payable to the 1st petitioner. The monthly maintenance ordered to be paid to the 2nd petitioner by the impugned order is maintained. 18. The question that remains consideration is whether the Family Court is erred in not stating reasons while ordering the maintenance as payable from the date of the petition. Sub-Section (2) of Section 125 Cr.P.C. needs extraction hereunder: “(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.” 19. What the provision says is that monthly maintenance if specifically directed in the order granting the same as payable from the date of the petition alone the claimant will be entitled for that. If the order granting maintenance is silent of that direction, then the maintenance will have to be taken as payable only from the date of the order. The provision does not say that the court ordering the monthly maintenance from the date of the petition has to state reasons for doing so. The argument of the learned counsel in that regard and seeking for a modification is discarded being devoid of legal backing. The Family Court has ordered the monthly maintenance payable from the date of the petition. 20. The Family Court is perfectly justified by sub-Section (2) of Section 125 Cr.P.C in ordering so. The argument of the learned counsel in that regard and seeking for a modification is discarded being devoid of legal backing. The Family Court has ordered the monthly maintenance payable from the date of the petition. 20. The Family Court is perfectly justified by sub-Section (2) of Section 125 Cr.P.C in ordering so. The modification sought by the learned counsel is found unwarranted in the context and therefore, is discarded. In the result, R.P.(F.C) stands allowed in part. The impugned order to the extent of granting Rs.3,000/- as monthly maintenance to the 1st petitioner is modified by reducing Rs.500/- therefrom. Rs.2,000/- ordered to be paid by the impugned order to the 2nd petitioner is maintained.