IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE3D DAY OF JANUARY201413TH POUSHA, 1935 RPFC.No. 57 of 2009 ------------------------------ M.C NO:
44. 2006 OF FAMILY COURT,ERNAKULAM DATED1007-2008. ---------------- REVISION PETITIONERS/PETITIONERS: --------------------------------------------------------- 1. SAINA SEBASTIAN, W/O.SEBASTIAN PAUL.C, CHAMMANIKODATHU HOUSE, PIPELINE JUNCTION, PALLICHAMBAYIL ROAD, P.O.PALARIVATTOM, ERNAKULAM.
2. DARIL SEBASTIAN, AGED ABOUT5YEARS, W/O.SEBASTIAN PAUL.C, CHAMMANIKODATHU HOUSE PIPELINE JUNCTION, PALLICHAMBAYIL ROAD, P.O.PALARIVATTOM, ERNAKULAM. MINOR REPRESENTED BY MOTHER GUARDIAN IST PETITIONER BY ADV. SMT.K.GIRIJA RESPONDENT/RESPONDENT: ------------------------------------------- SEBASTIAN PAUL.C., CHAMMANIKODATHU HOUSE, PIPELINE JUNCTION, PALLICHAMBAYIL ROAD, P.O.PALARIVATTOM, ERNAKULAM, NOW RESIDING AT THARUTHIPPILLY HOUSE, PALLIKKAVALA, CHERANELLOOR. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON0512-2013, THE COURT ON0301-2014 PASSED THE FOLLOWING: Msd. RPFC.No. 57 of 2009 ------------------------------ APPENDIX --------------- PETITIONERS' ANNEXURES: ---------------------------------------- ANNEXURE A: TRUE COPY OF THE PROOF AFFIDAVIT DATED2511-2006 IN MC442006 FILED BY THE1T PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM. ANNEXURE B: TRUE COPY OF THE PROOF AFFIDAVIT DATED1505-2008 IN MC442006 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM. RESPONDENTS' ANNEXURES: -------------------------------------------- NIL //TRUE COPY\\ P.A.TO JUDGE. Msd. K. RAMAKRISHNAN, J.
................................................ R.P.(F.C)NO.57 OF2009................................................ Dated this the 3rd day of January, 2014. ORDER
The petitioners in M.C.No.44/2006 on the file of the Family Court, Ernakulam are the revision petitioners herein. The application was filed by the petitioners under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') claiming maintenance for the first and second petitioners from the respondent. It is alleged in the petition that the first petitioner married the respondent on 19.5.1996 as per Christian religious rites and ceremonies at St. Joseph's Church, Kottamam, Kalady and thereafter they lived together as husband and wife and two children including the second petitioner were born to them in that wedlock on 14.7.1997 and 30.4.2003 respectively. Their relationship was cordial for about two years immediately after the marriage. Thereafter the respondent began to pester the first petitioner to bring money from her home. Whenever the first petitioner could not meet the demand for money by the respondent, the respondent used to manhandle her brutally. He has made wild allegations R.P.(F.C)NO.57 OF20092 against the first petitioner alleging that she was having adulterous relationship with the friends of the respondent. On 18.10.2005, the respondent brutally manhandled her and the first petitioner called C.P. George, a relative of the respondent, who came along with his wife and suggested to live separately for sometime in the house of her sister. Accordingly, she agreed for the same. On 3.11.2005, the first petitioner and the respondent went to Dr. Rajan at Kaloor for counselling as directed by C.P. George. They decided to consult Dr. John, a Psychiatrist and fixed appointment with him on 8.11.2005. They tried to project the first petitioner as a mental patient. In the meantime, the respondent began to pressurize the first petitioner to move for divorce by mutual consent, for which she was not amenable. During 2004, the first petitioner got license to work as an agent of Life Insurance Corporation of India. She, with the help of her brother-in-law, was able to get good business from their relatives. When the respondent lost his job, with the help of the brother-in-law of the first petitioner, they conducted a business in the room belonging to him from where she was canvassing for LIC business. Due to domestic problem, the shop was closed and thereafter it was not R.P.(F.C)NO.57 OF20093 possible to work as a LIC agent. She is even found it difficult to maintain the LIC license due to the wild allegation spread by the respondent against her and it is likely to be cancelled for not achieving the minimum target fixed. The first petitioner is a rheumatic patient. She has no income of her own. She requires Rs.3,000/- per month for her maintenance and Rs.2,000/- per month for the maintenance of the second petitioner. Their eldest son is residing with the respondent. The respondent is getting Rs.3,000/- per month by way of rent from the tenant, who is occupying a portion of the building and also getting Rs.400/- per day from the stationery shop run by him. He is getting more than Rs.15,000/- per month and having sufficient means to pay maintenance to the petitioners and the first petitioner is unable to maintain herself and so she prayed for allowing the application.
2. The respondent filed counter statement contending as follows: He admitted the marriage and paternity of the children. He had also admitted that he and the first petitioner were living together as husband and wife till the intervention of one B.J.
Vitto in their life. According to the respondent, Vitto R.P.(F.C)NO.57 OF20094 got introduced himself and he was helping his wife to get LIC policies. After sometime, the relationship between the first petitioner and Vitto became more cordial and she was even showing aversion towards the respondent. She had developed illicit relationship with the said Vitto and had even intercourse with him, which she had admitted to him. This was witnessed by their eldest child who is now living with him. In spite of several mediations and counselling, she was not prepared to leave the relationship with the said Vitto. The allegation that she is unable to maintain herself, a rheumatic patient etc. is not correct. She is working as a LIC agent and she was honoured with the title Kodipathi by the Life Insurance Corporation of India and she is getting more than Rs.20,000/- per month by way of agency commission. The allegation that the first petitioner was not having adulterous relationship with Vitto etc. is not correct. The respondent was compelled to leave the house when the first petitioner's illegal relationship with Vitto was known to the neighbours and witnessed by his eldest son. The incident narrated in the petition alleged to have been happened on 18.10.2005 is not correct. There was a mediation held at the instance of a relative, C.P. George and as suggested R.P.(F.C)NO.57 OF20095 in the mediation, she started residing with her sister's house with the second child leaving the first child with him. Thereafter, with the help of her brother, Josemon @ Dollarkuttan, who is a known criminal, occupied the house forcibly and thereafter the respondent was living in a rented house. He stopped his stationery business and now employed as a sales representative on commission basis. Their eldest child is admitted in Talent Public School and he will have to pay Rs.1,500/- per month towards school fees and bus fare. He will have to pay Rs.250/- per month for his tuition fees as well. He will have to pay the rent for the rented house and pay electricity charges and water charges. The income he derives from the commission business is not sufficient even to meet his requirements. The first petitioner is getting more income than the respondent and so both of them are not entitled to get maintenance from him. The present petition and other petitions were filed when the respondent filed an application for divorce on the ground of adultery as a counter blast for the same. So, the petitioners are not entitled to get any relief claimed in the petition and he prayed for dismissal of the application. R.P.(F.C)NO.57 OF20096 3. The first petitioner was examined as PW1 and the respondent was examined as RW1 and Exts.A1 to A7 and B1 to B4 were marked on their side. After considering the evidence on record, the family court found that the first petitioner is having sufficient means to maintain herself and the second petitioner and she is getting more income than the respondent and she is not entitled to claim maintenance for herself and the child and she is residing in the house belonging to the respondent and getting rent by letting out a portion of the building to tenants and dismissed the application. Aggrieved by the same, the present revision has been filed by the revision petitioners/petitioners in the lower court.
4. Though notice was served on the respondent, he remained absent .
5. Heard the learned counsel for the revision petitioners and perused the records.
6. The counsel for the revision petitioners argued that the family court was not justified in dismissing the application on flimsy grounds. It is true that she was a LIC agent and once became Kodipathy. But on account of the defamatory allegation spread by the respondent that she is living in an adulterous R.P.(F.C)NO.57 OF20097 life and as a prostitute, she could not canvas the business as a LIC agent as before and she is not getting any income. Even assuming that she was forced to employ herself to get some income, is not a ground to deny maintenance to her and the child from the respondent as he is legally bound to maintain them. So according to the learned counsel for the revision petitioners, the dismissal of the application by the lower court is unsustainable in law and prayed for allowing the application.
7. It is an admitted fact that the respondent married the first petitioner and they were living as husband and wife for quite sometime and in that wedlock two children were born to them including the second petitioner, who is now residing with the first petitioner. It is also an admitted fact that their relationship strained and they started residing separately from 18.10.2005. It is also an admitted fact that their eldest son is now residing with the respondent while the second child is living with the first petitioner. It is settled law that, the husband is bound to maintain his wife and children during the subsistence of the marriage, if the wife is unable to maintain herself. It is also settled law that, even if the husband is not having any income of his own, if it is proved that he is an able R.P.(F.C)NO.57 OF20098 bodied person capable of deriving income, then he is bound to maintain his wife and children. It is also settled law that, if the wife is able to establish that she is residing separately for valid reasons, then also the husband is bound to maintain his wife, if she is unable to maintain herself. It is also settled law that, merely because the wife is having some income by doing some employment, is not a ground to deny maintenance to her, if it is established that the income is not sufficient to meet her requirements and that will not absolve the liability to maintain the wife legally cast on the husband. This was so held in the decisions reported in Rajathi v. C. Ganesan (AIR1999SC2374, Chaturbhuj v. Sita Bai (2008 (1) KLT41SC) and Augustine George v. Lizamma Thomas alias Rosamma ( 2009 (1) KHC102. With these principles in mind, the facts of the case has to be analyzed.
8. It is an admitted fact that the first petitioner is now residing in the house belonging to the respondent. It is also an admitted fact that the first petitioner is a LIC agent and once she was honoured with the title Kodipathy. According to her, on account of the defamatory allegation spread by the respondent, she is unable to canvass the business as before R.P.(F.C)NO.57 OF20099 and she is finding it difficult to maintain her LIC license. This was so deposed by the first petitioner when she was examined as PW1. She had relied on Ext.A1 to prove this fact, which is a letter sent by the Life Insurance Corporation of India to the first petitioner to improve her business. But it is for her to prove that she is not getting as much income as she was getting earlier and that income is not sufficient to meet her both ends. When she was examined as PW1, she had admitted that she is even now doing LIC business. When certain questions were put to her regarding this aspect, her conduct was like this. 2004 2006 LIC agent work . work . 2006 April work . 2006 May policy canvass (Q) (A) LIC agent work (Q) No answer. xxx xxxxx xxxx Agency commission direct Bank credit . LIC agency . LIC commission records Bank details (Q) No answer. R.P.(F.C)NO.57 OF200910 So it is clear from the above that, she is even now doing LIC business and though she was capable of proving her income by producing documents, she was not prepared to produce the same. She is trying to withhold the best document in her possession, which may throw some light regarding her income willfully as if it is produced, it will go to show that she is getting sufficient income as a LIC agent, which is sufficient to meet her requirements.
9. It is also brought out in evidence that now she is residing in the house belonging to the respondent and she had let out a portion of the house to tenants and they were residing as paying guests in that house and she is getting income by way of that. This was proved through Ext.B3, the Commissioner's report in I.A.No.1097/2008 in O.P.No.372/2008 pending before the Family Court, Ernakulam and the correctness of those allegation mentioned in Ext.B3 was admitted by her in her cross examination as well. Further it was admitted by her that the respondent was doing business in the building belonging to her brother-in-law and according to her, it was she who was running the business even at that time and this fact was admitted by her as PW1 and reiterated by her in the R.P.(F.C)NO.57 OF200911 counter statement filed by her in I.A.No.1139/2006 in OP.No.368/2006 of Family Court, Ernakulam which was marked as Ext.B4. It is also admitted by PW1 that after their separation, the respondent had closed the business and left the building. Though she had a case that he was doing some other business, she was not able to say where he is doing that business. She had also admitted that she meant in respect of the business conducted in the shop belonging to her brother-in-law and admittedly run by her which was now closed even according to her. It was admitted by her that the tenants had left the place and now she has let out a portion of the building to others and rent was being collected by herself. All these things will go to show that she is now residing in the house belonging to the respondent and also getting income by way of rent by letting out a portion of the building to others and even now that continues. So, the respondent is not getting any income from the building or from the business as stated in the petition. Under the circumstances, it cannot be said that the respondent is having income from the business and also from the immovable property by way of rent as claimed by the first petitioner. So, from the circumstances, it R.P.(F.C)NO.57 OF200912 is clear that the first petitioner is getting income from LIC business and also getting income from a portion of the building belonging to the respondent by way of rent and it is also brought out in evidence that the respondent is now residing in a rented house paying rent. He had deposed that he is working as representative in a private firm on commission basis and with that income he is looking after himself and his eldest son.
10. It is true that he has got a responsibility to maintain his second son as well. But, if it is proved by evidence that he had provided means for the first petitioner to meet the maintenance expenses of the second petitioner as well and she is enjoying that facility, then he need not pay any separate maintenance to the second child unless it is proved by the first petitioner that the amount is not sufficient to meet the requirements of both herself and the child. In fact, it is seen from Ext.B3, the Commissioner's report, which was admitted by PW1 that there were eight persons residing in that building which is now in the possession of the first petitioner and each one of them were paying Rs.1,800/- per month for food and accommodation for living there as paying guests. So all these R.P.(F.C)NO.57 OF200913 things will go to show that the first petitioner is in a better position than the respondent and she is getting good income as LIC agent and the income from the building and the LIC agency will be sufficient to meet the expenses for the second petitioner as well as the first petitioner. So, under the circumstances, the Family Court was perfectly justified in coming to the conclusion that the first petitioner has failed to prove that she is unable to maintain herself and the income from the property is not sufficient to meet the expenses of the second child, who is living with her and rightly dismissed the application. There is no illegality committed by the court below in passing the impugned order and no interference is called for at the hands of this Court to interfere with the findings of the Family Court dismissing the application. So, this revision petition is liable to be dismissed. In the result, the revision petition is dismissed. Sd/- K. RAMAKRISHNAN, JUDGE. cl