Partly allowed

K.K.Sabareesan v. P.T.Sajna

Kerala HC9 Feb 2012RPFC/76/2011

Case brief

AI extract

What is this about?

High Court in revision held that Family Court erred in awarding Rs.1,000 monthly maintenance to the wife without properly considering husband's low income as a salesman. Order set aside and remanded for fresh determination while granting Rs.500 interim maintenance.

What did the court decide?

Maintenance of Rs.1000/month to wife set aside; matter remanded for fresh consideration; respondent to pay Rs.500/month interim maintenance.

K.K.Sabareesan Vs P.T.Sajna — Maintenance and Alimony | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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THURSDAY, THE 9TH DAY OF FEBRUARY 2012/20TH MAGHA 1933

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RPFC.No. 76 of 2011 ( )

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M.C.NO.12/2010 OF FAMILY COURT, KALPETTA

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REVISION PETITIONER/COUNTER PETITIONER:

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K.K.SABAREESAN,S/O.GOPALANUNNI NAIR, AGED 40 YEARS,KALLUVETTUKUZHIKKAL VEEDU, VATTOLI BAZAR(PO),SIVAPURAM AMSOM,KOYILANDY TALUK, BALUSSERY POLICE LIMIT.

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BY ADV. SRI.MATHEW KURIAKOSE

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RESPONDENT(S)/PETITIONERS:

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1. P.T.SAJNA,AGED 37 YEARS,

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D/O.BALACHANDRAN NAMBIAR,PONNANKODE VEEDU,

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THEKKUMTHARA(PO),VENGAPPALLY VILLAGE,PIN-673 121.

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2. ANAMIKA,D/O.P.T.SAJNA,AGED 7 YEARS,

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PONNANKODE VEEDU,THEKKUMTHARA(PO),VENGAPPALLY

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VILLAGE,REP.BY HER MOTHER AND IST RESPONDENT

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P.T.SAJNA. PIN-673 121.

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R1 & R2 BY ADV.SRI.V.R.GOPU

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

sts

RPFC.NO.76/2011

APPENDIX

PETITIONER'S ANNEXURES:

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ANNEX A COPY OF THE ORIGINAL TELEPHONE BILL DATED 5/9/2009 ISSUED TO M/S.FLOURESCE ELECTRONICS, PROP. VINOD KUMAR.M.

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ANNEX B COPY OF THE ATTESTED COPY OF THE RECEIPT DATED 18/2/2010 ISSUED ON BEHALF OF THE KOZHIKODE CORPORATION TO VINOD KUMAR.M FOR THE PAYMENT OF LICENCE FEE FOR THE YEAR 2010-11

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RESPONDENT'S ANNEXURES: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

P.BHAVADASAN, J.

R.P.F.C.No.76 of 2011

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Dated this the 9^th day of February, 2012

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O R D E R

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Under challenge is the order dated 25.01.2011 in M.C.No.12 of 2010 before the Family Court, Kalpetta. By

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the said order, the Family court awarded maintenance at the rate of Rs.1,000/- per month to the 1^st petitioner and Rs.1500/- to the 2^nd petitioner who is a minor child.

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The parties and facts are hereinafter referred to as they are arrayed before the trial court.

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The marriage between the 1^st petitioner and respondent was solemnized on 23.01.2003 and they were living together as husband and wife in the residence of the husband. A child was born in the wedlock on 18.11.2003. Various allegations regarding the money and gold ornaments given at the time of marriage and ill treatment suffered by her from the members of the family as well as her husband are seen made. Unable to bear the cruelty, it

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-:2:-

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R.P.F.C.No.76 of 2011

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is claimed that the 1^st petitioner was taken to her parental house by her parents and thereafter the respondent has not been taken care of the petitioners. According to the petitioners, the respondent is bound to maintain them as they have no independent source of income of their own. Therefore the petitioners claimed maintenance at the rate of Rs.3,000/- each.

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The respondent resisted the petition by pointing out that he is not getting Rs.13,000/- per month as alleged by the petitioner. It is also pointed out that the 1^st petitioner is employed in a private establishment and respondent is employed as a salesman in a shop. The amounts claimed are exorbitant. It is also pointed out that the 1^st petitioner had left the matrimonial house on her own volition and thereafter the respondent has been sending money orders and she has been receiving the same. Therefore, it cannot be said that that there is willful negligence on the part of the respondent in maintaining the petitioners. He pointed

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R.P.F.C.No.76 of 2011

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out that the amount of maintenance claimed is exorbitant and prayed for the dismissal of the petition.

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Evidence was adduced by both sides. The 1^st

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petitioner examined herself as PW1 and had Exts. A1 to A12 marked. The respondent examined himself as RW1 and had Exts.B1 and B2 marked. The court below considered the evidence and came to the conclusion that the respondent is bound to maintain the petitioners and ordered maintenance at the rate of Rs.1000/- per month to the 1^st petitioner and Rs.1500/- to the 2^nd petitioner from the date of the petition.

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The learned counsel appearing for the revision petitioner pointed out that the court below was not justified in directing respondent to pay maintenance to the 1^st petitioner before the court below. It is pointed out that not only the 1^st petitioner is employed, she had left the matrimonial home on her own volition and there was no negligence or refusal on the part of the respondent to maintain her as he was sending money orders to her and

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-:4:-

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R.P.F.C.No.76 of 2011

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she received the money orders also. It is also pointed out that the income of the respondent before the court below as stated in the petition for granting maintenance is too high and it is contrary to the evidence adduced by the revision petitioner before the court below.

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The reason given by the first petitioner to stay away from the house is the cruelty of the members of the family of the respondent as alleged by her. Even though it is alleged that respondent is the owner of a business, the court below has refused to accept the same. It has come out in evidence that even after the 1^st petitioner left the company of the respondent amounts were being send to the 1^st petitioner by the respondent. There was no total negligence on the part of the 1^st respondent in maintaining the petitioners before the court below.

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The revision petitioner has a case that he is only a salesman in a shop has not been considered by the court below. Moreover, it is contended that the 1^st petitioner is

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R.P.F.C.No.76 of 2011

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employed and drawing income. At any rate, it is contented that the lower court was not justified in ordering maintenance at the rate of Rs.1000/-per month to the 1^st petitioner.

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After hearing the counsel and going through the records, it is felt that no interference is called for in the decision granting maintenance to the 2^nd petitioner, who is a child, at the rate of Rs.1500/- per month. However, decision, with regard to the maintenance awarded to the 1^st petitioner, namely the wife, a reconsideration is necessary. The respondent has pointed out that he has been sending amounts for the maintenance of the 1^st petitioner. According to the revision petitioner, he is working as a salesman and that aspect is omitted to be noticed by the court below. The revision petitioner is earning only a limited income and pointed out that he has to maintain his mother and other members of the family.

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Considering the income drawn by the revision

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R.P.F.C.No.76 of 2011

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petitioner, it is felt that a reconsideration of the maintenance awarded to the 1^st petitioner is necessary.

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This revision petition is therefore partly allowed, that portion of order maintenance awarding maintenance to the 1^st petitioner at the rate of Rs.1000/- month is set aside and the matter is remanded to the Family Court concerned for fresh consideration regarding the maintenance awarded to the 1^st petitioner. In the meanwhile, the respondent shall pay Rs.500/- per month as interim maintenance to the 1^st petitioner. If ultimately, it is found that 1^st petitioner is not entitled to any maintenance, the amount paid as maintenance will be adjusted towards the amount ordered to be paid to the 2^nd petitioner.

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P.BHAVADASAN, JUDGE

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KKJ

K.K.Sabareesan v. P.T.Sajna

Case brief

What is this about?

What did the court decide?

K.K.Sabareesan v. P.T.Sajna

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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