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2025 DIGILAW 2296 (KER)

Sajan S/o Bahuleyan v. Preetha D/o Ponnappan

2025-08-25

DEVAN RAMACHANDRAN, M.B.SNEHALATHA

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JUDGMENT : DEVAN RAMACHANDRAN, J. 1. This Appeal by the appellant is edificed on one factual assertion, that he is unable to pay the amount of Rs.6,000/- imposed against him as maintenance in favour of the respondent, because he is unwell and hence not in a position to earn. 2. Hearing Smt.M.A.Sulfia – learned counsel for the appellant, on the afore lines, we, on 30.05.2025, acceding to her request that her client be sent for a medical evaluation, passed the following order: 1. The learned Counsel for the appellant requested that his client be subjected to a Medical Board evaluation of his physical conditions; and offered to appear before the same any day of this Court's choice. 2. In fact, the learned Counsel for the respondent also welcomed such a course. 3. We, therefore, direct the appellant to mark appearance before the Superintendent of the Ernakulam Medical College at 11 A.M on 04.06.2025. We request the learned Senior Government Pleader, Smt.Mary Beena Joseph, to inform the Superintendent of the Ernakulam Medical College of this order and to request him to constitute a Medical Board, either on that day, or on a day to be fixed, for a complete evaluation of the appellant, particularly with respect to his alleged condition. 4. List, for report on 10.06.2025. The Registry is directed to hand over a copy of this order to Smt.Mary Beena Joseph, learned Senior Government Pleader. 3. Thereafter, this matter was considered at least thrice; and we had altered the Medical Board to be at Kottayam. Finally, a report has been made available to us by the learned Government Pleader. 4. The standing Disability Assessment Board of the Government Medical College Hospital, Kottayam, has rendered an opinion that the appellant has ‘Pituitary Prolactinoma’ which can be medically managed, but that he has ‘Zero’ neurological disability. 5. Smt.M.A.Sulfia – learned counsel for the appellant, however, submitted that whatever be the contents of the report, the fact remains that her client is suffering from debilitating medical conditions and is not in a position to work at all. She insisted that her client is now being supported by his friends and relatives and therefore, cannot abide by the condition imposed against him. Interestingly, she then added that her client will be able to pay up to Rs.3,500/- per month, but is incapacitated from paying more than that. 6. She insisted that her client is now being supported by his friends and relatives and therefore, cannot abide by the condition imposed against him. Interestingly, she then added that her client will be able to pay up to Rs.3,500/- per month, but is incapacitated from paying more than that. 6. Smt.M.A.Sulfia, thereafter, submitted that the petition filed by the respondent – wife seeking enhancement, is itself untenable because, there was an earlier proceeding between the parties which culminated in a judgment, ordering her client to pay Rs.2,000/- to the respondent as maintenance; and hence that, if the respondent required its enhancement, she ought to have moved an application for modification of the said judgment, rather than filing a fesh Original Petition. 7. Sri.B.Pramod – learned counsel for the respondent, in response, submitted that all the assertions of the appellant are belied by the report of the Standing Disability Assessment Board of the Medical College, Kottayam; and that this is a clear case where the appellant is refusing to work and then asserting that he does not have any income. He added that, though it may be true that the appellant is not a fully healthy person, having minor issues like ‘Pituitary Prolactinoma’ - which is a benign condition, his insistence that he does not have money to pay maintenance to his wife to an exiguous sum of Rs.6,000/- is unfair and uncharitable and he relied upon the judgment of this Court in Shamshad C. v. Shafeena K. 2025 (1) KLT 380 . 8. As regards the contention of Smt.M.A.Sulfia, that the Original Petition itself was not maintainable, Sri.B.Pramod argued that this is only hypertechnical because, eventually, what the learned Family Court decided was whether the maintenance in favour of the respondent was adequate or otherwise. 9. Sri.B.Pramod thereafter submitted that the appellant has been making unsubstantiated assertions, which is evident from the fact that he even went to the extent of saying that his client is working as an Advocate Clerk, which was strongly refuted by the respondent when she testified as PW1. He concluded, saying that the intentions of the appellant are, therefore, questionable and confutative. 10. He concluded, saying that the intentions of the appellant are, therefore, questionable and confutative. 10. We have considered the afore rival submissions on the touchstone of the various materials on record, as also the depositions of the witnesses - copies of which have been handed over across the bar by the learned counsel, expressly affirming that it can be heard by us. 11. The documents and evidence are exhibits A1 and B1, which are the earlier judgment of the learned Family Court in OS No.714/2007 and a Hospital Outpatient Ticket, respectively. While the respondent herein offered evidence as PW1; the appellant testified as RW1. 12. As we have indicated above, the contentions of the appellant are two fold: firstly, that the Original Petition is not maintainable; and, secondly, that the amount imposed upon him is excessive. 13. On the question of the non-maintainability of the Original Petition, we do not see such a contention to have been taken before the Trial Court; but even if we are to assume so, as argued by Sri.B.Pramod, the learned Family Court was solely considering whether the amount granted earlier ought to be revised. We do not propose to take a hyper-technical view in this case because, the processes before the learned Family Court are intended for the benefit of the parties, who can even appear without counsel. 14. That said, it is true that the learned Family Court had fixed the monthly maintenance payable by the appellant to be Rs.2,000/- in OP No.714/2007. It is, thereafter, that the respondent – wife filed the present Original Petition seeking that it be enhanced. We cannot find any cause to hold this petition to be non- maintainable; and therefore, repel the contention to such effect. 15. Coming to the argument of the appellant, that he does not have the means or wherewithal to pay Rs.6,000/-, it must be kept in mind that his learned counsel says that he is willing to pay Rs.2,000/- as was fixed against him earlier, or to a maximum sum of Rs.3,500/- per month. So, this is not a case where he refuses to pay maintenance, but imputes that the present amount is excessive. 16. We notice that the respondent is nearly 50 years in age and obviously, a lady in that stage of life requiring several necessities, including food and medical assistance. So, this is not a case where he refuses to pay maintenance, but imputes that the present amount is excessive. 16. We notice that the respondent is nearly 50 years in age and obviously, a lady in that stage of life requiring several necessities, including food and medical assistance. The amount fixed is only Rs.6,000/- which, by any standard, is exiguous; and hence we cannot find it to be excessive, as has now been asserted by the appellant. 17. Coming to the appellant, his only case is that he is suffering from a medical condition and therefore, unable to either fend for himself, or to pay maintenance in excess of Rs.3,500/- to the respondent. 18. However, the report of the Standing Disability Assessment Board of the Government Medical College Hospital, Kottayam - a copy of which shall stand appended to this judgment – speaks totally to the contrary and establishes that the appellant does not have any inability to be involved in an avocation which would not require great physical activity. We, therefore, cannot fathom why his learned counsel still maintains that he cannot work at all or earn. In the afore circumstances, we find no reason or cause to intervene with the judgment of the learned Family Court. At this time, Smt.M.A.Sulfia - learned counsel for the appellant submitted that his client is willing to offer a settlement to the respondent, by giving to her his auto rikshaw. However, the respondent submitted that she cannot accept any such settlement because, even during the evidence, the appellant had testified as RW1 that the said vehicle, as also another four wheeled taxi, had been kept idle without its insurance papers and registration being renewed. She added that this is merely a ruse of the appellant to deny her the benefits of the decree. This Appeal is consequently dismissed; however, taking note of the rather peculiar circumstance involved, we make no order as to costs.