Partly allowed

Rajitha v. Pusparajan

Kerala HC4 Dec 2019RPFC/139/2014

Case brief

AI extract

What is this about?

The High Court affirmed the Family Court's order disallowing maintenance to a wife found living in adultery. However, finding the award to the minor son inadequate relative to the respondent's income, the court enhanced the child's maintenance allowance from Rs.2,500 to Rs.3,000 per month.

What did the court decide?

The order disallowing the wife's claim was affirmed. The maintenance allowance for the minor son was enhanced to Rs.3,000 per month, effective from the date of the petition.

Rajitha Vs Pusparajan — Maintenance and Alimony | Kerala HC (2019)

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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 C.S.DIAS

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WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941

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RPFC.No.139 OF 2014

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AGAINST THE ORDER IN MC 305/2011 DATED 21-02-2014 OF FAMILY COURT, PALAKKAD

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REVISION PETITIONERS/PETITIONERS:

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1 RAJITHA AGED 30 YEARS W/O.PUSHPARAJAN, R/A.KALODE, NOCHULLY POST, KUZHALMANNAM, ALATHUR TALUK, PIN-678702

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2 DHANUSH S/O.RAJITHA AGED 10 YEARS R/A.-DO-,(2ND PETITIONER IS MINOR REPRESENTED BY GUARDIAN MOTHER, IST PETITIONER RAJITHA)

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BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

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RESPONDENT/COUNTER PETITIONER:

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PUSHPARAJAN AGED 41 YEARS S/O.NARAYANAN, CHENNAMKODE, KUNISSERY, AMSOM AND DESOM, ALATHUR TALUK, PIN-678681

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R1 BY ADV. SRI.LIJU. M.P R1 BY ADV. SRI.SAJAN VARGHEESE K.

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RPFC.No.139 OF 2014

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ORDER

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The petitioners in M.C No.305/2011 on the file of the Family Court, Palakkad, are the revision petitioners in this revision petition. The respondent in the said case is the respondent in this revision petition.

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2. The revision petitioners had filed the maintenance case against the respondent under Section 125 of the Code of Criminal Procedure, seeking monthly maintenance at the rate of Rs.4000/- and Rs.3000/-, respectively.

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3. The revision petitioners averred

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in M.C 305/2011 that, the respondent drew the revision petitioners away from the matrimonial home on 30.4.2011, and

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thereafter, he has willfully refused to

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maintain them.

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4. The revision petitioners further

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averred that the 1^st revision petitioner

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has no source of income and the 2^nd revision petitioner, the son of the couple, is a student. Even though the respondent is getting a monthly income of Rs.50,000/-, he has refused to maintain the revision petitioners.

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5. The respondent filed a written objection, inter alia, contending that

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his wife was living in adultery and is, therefore,dis-entitled to maintenance as provided under Section 125(5) of the Cr.P.C. According to him, the 1^st

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revision petitioner was caught re-handed on 30.4.2011 having physical relationship

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with one Basheer; the incident was witnessed by two witnesses. On the same day she was taken away to her parental home by her parents. From then onwards, she is residing in her parental home with the 2^nd revision petitioner.

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6. The 1^st revision petitioner was

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examined as PW1 and the respondent was examined as CPW1. The respondent's brother and cousin brother were examined as CPW2 and CPW3 and Exts.D1 to D10 were marked.

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7. The Family Court after

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considering the pleadings and evidence on record, came to the conclusion that the 1^st revision petitioner is living in adultery, therefore, she is not entitled

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for maintenance, as her claim falls

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RPFC.No.139 OF 2014

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under Section 125(4) of Cr.P.C. The Family Court, however, directed the respondent to pay Rs.2500/- to the 2^nd revision petitioner, from the date of petition.

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8. It is assailing the order passed by the Family court rejecting the claim of the 1^st revision petitioner and complaining of inadequacy of maintenance allowance awarded to the 2^nd revision petitioner, that this R.P (FC) is filed.

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9. Heard Adv.P.K.Mohanan, the counsel for the revision petitioners and Adv.Sajan Varghese K, the counsel for the respondent.

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10. The counsel for the respective parties reiterated the contention of the

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respective parties before the Family

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RPFC.No.139 OF 2014

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Court. The counsel for the revision petitioner contended that the Family Court committed an illegality and impropriety by refusing maintenance to the 1^st revision petitioner on the finding that she was living in adultery and that the amount awarded to the 2^nd revision petitioner was meager. Per contra, the counsel for the respondent supported the impugned order and submitted that there was no ground warranting interference by this Court exercising its revisional jurisdiction.

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11. The questions that emerges for consideration are whether the 1^st revision petitioner is entitled for maintenance, and whether the amount awarded to the 2^nd revision petitioner is reasonable?

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12. The marriage as well as the paternity of the child are not disputed by the respondent. His defence for nonpayment of maintenance is that the 1^st revision petitioner is living in adultery.

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13. According to counsel for the respondent, who took me through the evidence of the witnesses examined in the M.C, on 31.3.2011 at about 10 p.m, the 1^st revision petitioner was caught red handed, by CPW2 and CPW3, having physical relationship with one Basheer. They also recovered Exts.D1 to D10 from the bed room of the 1^st revision petitioner. Exts.D1 to D7(b) are all personal documents of Sri.Basheer. PW1 has no explanation how these documents reached

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her bed room. Ext.D9 is a registered conveyance deed executed by the said Basheer in favour of the 1^st revision petitioner. Ext.D10 is a registered

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surrender deed executed by the 1^st revision petitioner in favour of Basheer.

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14. It is also discernible from the evidence of CPW2 and CPW3 that they witnessed the incident of the 1^st revision petitioner having sexual relationship with Basheer, on 31.3.2011 at about 10

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p.m. The 1^st revision petitioner was caught red-handed, while indulging physical relationship and Basheer who ran away from the spot. However, he was chased and caught by the people of the locality.

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15. The evidence of CPW2 and CPW3

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read with Exts.D1 to D10, leads to the irresistible conclusion that the 1^st revision petitioner was living in adultery at the relevant time with Basheer, and she was ultimately caught on 31.3.2011. It is also admitted by both parties that the respondent was, during that period, working in Gujarath. On coming to learn about the incident, he returned to Alathur and filed Ext.D8 complaint before the Judicial First Class Magistrate's Court, Alathur, alleging that Basheer committed an offence under Section 497 of the Indian Penal Code.

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16. The Family Court after considering the pleadings and evidence on record, particularly Exts.D1 to D10 and

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the oral testimony of CPW2 and CPW3, came

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to the conclusion that the 1^st revision petitioner was living in adultery, therefore, she was not entitled for maintenance. It is an undisputed fact that CPW2 and CPW3 are brother and cousin brother of the respondent. They were keeping a close watch on the licentious lifestyle of the 1^st revision

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petitioner for some time. On the eventful night, they waited for the 1^st revision petitioner's adulterer to enter the house and indulge in the sex act with her, and thereafter caught her

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to prove her immoral act. The said incident, read with Exts.D9 and D10 establishes that there was a long standing relationship between the 1^st revision petitioner and Basheer.

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Adultery cannot be expected to be proved beyond reasonable doubt; preponderance of probability is enough. In the case, the respondent has proved the adulterous

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relationship between the 1^st revision

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petitioner and Basheer. The other documents namely Exts.D1 to D8 also establish the relationship. Resultantly, only the 2^nd revision petitioner was awarded an amount of Rs.2500/-, as maintenance allowance to be realised from the respondent.

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17. The Family Court on a threadbare analysis of the evidence and pleadings on record by the exhaustive impugned order

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has concluded that the 1^st revision petitioner was living in adultery. I do not think that there is any illegality or

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RPFC.No.139 OF 2014

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error in the impugned order, to set

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aside the finding by invoking the revisional jurisdiction of this Court under Section 402 of the Cr.P.C read with Section 19(4) of the Family Courts Act, 1984.

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18. The counsel for the revision petitioners then contended that he has also raised a ground in the revision petition that the amount awarded as maintenance to the 2^nd revision petitioner at the rate of Rs.2500/- is inadequate, especially considering the fact that the respondent has an income of Rs.50,000/per month. The claim made by the 2^nd revision petitioner was for maintenance at the rate of Rs.3000/-; the Family Court without assigning any reason

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RPFC.No.139 OF 2014

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limited the amount to Rs.2500/- per

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month. Considering the status and standard of living of the parties, the Family Court ought to have awarded the 2^nd revision petitioner an amount of Rs.3000/- per mensum.

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19. Taking into consideration the pleadings, evidence on record and the findings of the Family Court in the impugned common order, I hold that the finding of the Family Court disallowing maintenance to the 1^st revision petitioner is legal and just. However, the rate of maintenance awarded to the 2^nd revision petitioner at the rate of Rs.2500/- per month without any specific finding is inadequate. Hence, I enhance the maintenance allowance of the 2^nd revision

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petitioner from Rs.2500/- to Rs.3000/- as

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claimed in the M.C from the date of

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petition, i.e from 23.9.2011. The respondent is directed to pay the 1^st respondent the maintenance allowance at the enhanced rate from the date of M.C. Needless to mention that, the parties would be at liberty to approach the Family Court, in case of any change of circumstances, to seek for modification of the impugned order passed by the Family Court and confirmed by this Court in this R.P. (FC).

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With the above observations, this R.P (FC) is disposed of as follows:

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(i) The order in M.C No.305/2011 in respect of disallowing the maintenance claim of the 1^st revision petitioner is

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affirmed;

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(ii) The order in M.C No.305/2011 in respect of quantum of maintenance to the

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2^nd revision petitioner is modified,

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directing the respondent to pay maintenance allowance at the rate of Rs.3000/- per month to the 2^nd revision petitioner from the date of petition i.e 23.9.2011, within a period of sixty days from today. If any amount has already been paid as per the order, the same shall be given credit in calculating the arrears.

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(iii) The revision petitioners and respondent are at liberty, if there are any change of circumstances, to move the Family Court seeking modification of the order in M.C No.305/2011.

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(iv). The parties shall bear their

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respective costs.

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ma/16/12/2019

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Sd/-C.S.DIAS, JUDGE

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/True copy/ P.S to Judge

Rajitha v. Pusparajan

Case brief

What is this about?

What did the court decide?

Rajitha v. Pusparajan

Case brief

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What did the court decide?

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