Partly allowed

Sajju Sudheesh v. S. Sudheesh

Kerala HC26 Oct 2022RPFC/191/2022

Case brief

AI extract

What is this about?

A single judge of the Kerala High Court dismissed a revision petition challenging the maintenance rate while partly allowing a connected revision. The court enforced the Family Court's domestic judgment but enhanced the monthly maintenance amount from Rs.8,000/7,000 to Rs.10,000 due to the husband's undisputed high income.

What did the court decide?

Monthly maintenance enhanced to Rs.10,000 each for the petitioner wife and minor daughter; arrears to be paid forthwith.

Sajju Sudheesh Vs S. Sudheesh — Service and Employment | Kerala HC (2022)

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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 A. BADHARUDEEN

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WEDNESDAY, THE 26^TH DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 RPFC NO. 243 OF 2021

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AGAINST THE ORDER DATED 30.04.2021 IN MC 98/2017 OF FAMILY COURT, PATHANAMTHITTA PETITIONER/RESPONDENT:

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S. SUDHEESH, AGED 56 YEARS S/O. V.K. SUKUMARAN, AMBADI HOUSE, NELLIKALA P.O., ELANTHUR, PATHANAMTHITTA-689643, ELANTHUR VILLAGE, KOZHENCHERRY TALUK. BY ADVS. GISA SUSAN THOMAS ANJANA G. JOBIN JOSE P.

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RESPONDENTS/PETITIONERS :

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1 SAJJU SUDHEESH, AGED ABOUT 54 YEARS, W/O. SUDHEESH, ABHIRAMAM HOUSE, PAINGANA, MUNDAKKAYAM, KANJIRAPPALLY, KOTTAYAM DISTRICT-686513. 2 ABHIRAMI, AGED 22 YEARS D/O. S. SUDHEESH, ABHIRAMAM HOUSE, PAINGANA, MUNDAKKAYAM, KANJIRAPPALLY, KOTTAYAM DISTRICT-686513. 3 SIVAKAMI (MINOR), AGED 16 YEARS, REPRESENTED BY HER MOTHER SAJJU SUDHEESH, ABHIRAMAM HOUSE, PAINGANA, MUNDAKKAYAM, KANJIRAPPALLY, KOTTAYAM DISTRICT-686513. BY ADVS. RINNY STEPHEN CHAMAPARAMPIL ASHA ELIZABETH MATHEW

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12.10.2022, ALONG WITH RPFC.191/2022, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:2:-

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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 A. BADHARUDEEN WEDNESDAY, THE 26^TH DAY OF OCTOBER 2022 / 4TH KARTHIKA,

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1944

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RPFC NO. 191 OF 2022

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AGAINST THE ORDER DATED 30.04.2021 OF THE FAMILY COURT, PATHANAMTHITTA IN MC 98/2017

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REVISION PETITIONERS/PETITIONERS 1 & 3 :

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1 SAJJU SUDHEESH AGED 52 YEARS W/O. SUDHEESH SUKUMARAN, ABHIRAMAM HOUSE, PAINGANA MURI, MUNDAKAYAM VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT - 686513

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2 SIVAKAMI AGED 17 YEARS ABHIRAMAM HOUSE, PAINGANA MURI, MUNDAKAYAM VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT - 686 513 REP BY HER GUARDIAN (MOTHER) SAJJU SUDHEESH, AGED 52 YEARS, W/O. SUDHEESH SUKUMARAN, ABHIRAMAM HOUSE, PAINGANA MURI, MUNDAKAYAM VILLAGE, KANJIRAPALLY TALUK, KOTTAYAM DISTRICT – 686513

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BY ADV.SRI.RINNY STEPHEN CHAMAPARAMPIL

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RO(FC)Nos.243 of 2021 & 191 of 2022

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-:3:-

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RESPONDENTS/RESPONDENT & STATE :

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1 S. SUDHEESH AGED 54 YEARS S/O. V.K. SUKUMARAN, AMBADI HOUSE, NELLIKALA MURI, ELANTHOOR VILLAGE, KOZHENCHERRY TALUK - 689643

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2 THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682031 BY SRI.T.R.RENJITH, SR.PUBLIC PROSECUTOR

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THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12.10.2022, ALONG WITH RPFC.243/2021, THE COURT ON 26.10.2022 DELIVERED THE FOLLOWING:

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RO(FC)Nos.243 of 2021 & 191 of 2022

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-:4:-

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A.BADHARUDEEN, J.

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R.P(FC)Nos.243 of 2021 and 191 of 2022

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--------------------------------------------------------

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Dated this the 26^th day of October, 2022

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COMMON ORDER

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RPFC No.243 of 2021 has been filed under

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Sections 397 and 401 of the Code of Criminal Procedure (hereinafter will be referred as Cr.P.C. for convenience) by the respondent in M.C.No.98 of 2017 challenging order

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dated 30.04.2021 whereby, the Family Court, Pathanamthitta granted maintenance at the rate of Rs.8,000/- and Rs.7,000/- respectively per month to respondents 1 and 3 herein, who are petitioners 1 to 3 in

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the above MC, from the date of the petition.

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RPFC No.191 of 2022 is another revision

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RO(FC)Nos.243 of 2021 & 191 of 2022

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-:5:-

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petition filed by respondents 1 and 3 in RPFC No.243 of

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2021, who are petitioners 1 and 3 in the MC canvassing enhancement of maintenance granted by the Family Court and assailed in RPFC No.243 of 2021.

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Parties in these matters will be referred as

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to their status before the trial court for convenience.

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Heard Adv.Gisa Susan Thomas appearing for

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the respondent/revision petitioner in RPFC No.243 of 2021

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and Adv.Rinny Stephen Chamaparampil appearing for the petitioners 1 to 3/respondents 1 and 2 in RPFC No.243 of 2021 and revision petitioners in RPFC No.191 of 2022.

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It is submitted by the learned counsel for

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the respondent that earlier, the Family Court passed an order whereby, the Family Court directed the respondent to pay maintenance at the rate of Rs.8,000/- to original petitioners 1 to 3 in the MC as per order dated 04.08.2018.

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When the matter was taken before this

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:6:-

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Court in revision as per order in RPFC No.528 of 2018 dated 02.06.2020, this Court set aside the order and remanded the matter for fresh consideration with liberty to the respondent to adduce evidence to negate the contentions of the petitioners. He also submitted that when the Family Court considered the matter again also, the petitioner, who has been working abroad, could not appear before the Family Court and to adduce evidence in support of his contentions. It is submitted by the learned counsel for the respondent that since the respondent wants to adduce evidence, the matter again be remanded to the Family Court, after setting aside the order impugned facilitating opportunity to the respondent to adduce evidence.

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Per contra, the learned counsel for the petitioners submitted that petitioners 1 and 3 alone were granted maintenance as per the impugned order, since the

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:7:-

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2^nd petitioner attained majority by the time. It is pointed out that the respondent herein has been protracting payment of maintenance due to the petitioners and no amount paid so far. He submitted further that when the earlier order was passed, it was challenged before this Court by way of revision and when this Court remanded back the matter before the Family Court, then also, the respondent was not ready to adduce evidence and therefore, the impugned order has been passed by the Family Court appraising the contentions of the petitioners that the respondent herein has been working in Dubai and he has been getting a substantial sum as income. The learned counsel highlighted the objection filed by the respondent before the Family Court, while opposing the claim for maintenance at the instance of the petitioners.

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According to the learned counsel for the petitioners in the objection filed before the Family Court, no

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:8:-

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contention raised to the effect that the petitioners have any means of income for their livelihood. It is also pointed out that the objection as regards the contention raised by the petitioners to the effect that the respondent has been working abroad and he has been getting a fair income as Quality Control Executive, the respondent not denied the said contention even in an evasive manner. Therefore, no evidence required to be adduced, since the objection does not contain denial of vital aspects.

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While appraising the rival contentions, the specific case put up by the petitioners before the Family Court is that they don't have means of maintenance and the respondent, who has been working abroad as Quality Control Executive, was earning a monthly income of Rs.1,00,000/-. Further, the contention raised was that the respondent wilfully neglected to provide maintenance to the petitioners with effect from 28.05.2014. On the above

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:9:-

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grounds, the petitioners pressed for grant of maintenance at the rate of Rs.20,000/- to the first petitioner and Rs.10,000/- to the second and third petitioners/the children. However, by the time, the second petitioner attained majority. Therefore, after remand, the petitioner pressed for maintenance to petitioners 1 and 3 alone.

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I have perused the objection filed by the respondent resisting the claim for maintenance, at the option of the petitioners. For clarity, paragraphs 3 and 4 of the objection are extracted hereunder:

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“3. The averment to the effect that the 1^st petitioner was adorned with 80 sovereigns of gold at the time of marriage and she had received Rs.2 lakhs as parental share is utter false and hence denied. The averment to the effect that this respondent is a drunkard and used to come to the residence heavily drunk stage and assaulted the 1^st petitioner is incorrect and hence denied. Respondent was not in a habit of consuming liquor and not shown in any illicit relation with other women. Respondent is never keeping an illicit relation with the so called 'Roseena Raju'. The

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RO(FC)Nos.243 of 2021 & 191 of 2022

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-:10:-

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husband of 'Roseena Raju' is a close friend of this respondent. 'Roseena Raju' is residing in Kerala and not in Dubai. It is submitted that this respondent is an affectionate husband and father and always stood for the well being and welfare of the petitioners.

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It is further submitted that the petitioners are now residing in the house which was purchased by this respondent with his hard earned money. The 1^st petitioner is the person who filed petition for divorce and separated children from this respondent. The amount sought by the petitioners is exorbitant and excessive.”

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11. A cursory reading of the contentions raised

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by the respondent in the above MC, it is crystal clear that the respondent has no case that the petitioners are capable of maintaining themselves and they are having sufficient income. Similarly, the income asserted by the petitioners to the tune of Rs.1,00,000/- also was not even disputed or denied by the respondent in any manner. The dispute is confined to quantum only.

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It is relevant to note that, this Court set

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:11:-

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aside the earlier order passed by the Family Court dated 04.08.2018 and one more opportunity was given to the respondent to adduce evidence. But the 2^nd opportunity also was not availed by the respondent. This is the context in which the objection filed by the respondent assumes significance. In the relevant paragraphs of the objection, as extracted above, nothing stated to counter the claim of maintenance canvassed by the petitioners in any manner and the dispute is confined to quantum alone. Therefore, it has to be held that claim of maintenance pressed for by the petitioners stands not disputed by the respondent. In such a case, the Family Court granted maintenance at the rate of Rs.8,000/- to the first petitioner and Rs.7,000/- to the third petitioner, placing reliance on the evidence of PW1 and giving emphasis to the objection which contain nothing to deny the claim.

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It is true that the Family Court disposed of

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:12:-

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the other cases in between the parties and the same is not under challenge herein. In the grounds of revision also, it has been stated that opportunity to the petitioner was denied to adduce evidence and the principle of “ Audi Alteram Partem ”(right of hearing) was denied.

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The submission appears to be not at all

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convincing. That is to say at the very inception itself, the respondent filed objection raising contentions as extracted above. But, he did not adduce any evidence and accordingly, earlier Rs.8,000/- each were granted per month to the petitioners 1 to 3.

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When the said order was challenged on the ground of denial of opportunity to adduce evidence , this Court remanded the matter for fresh consideration providing another opportunity to the respondent to adduce evidence. But the respondent wilfully neglected to adduce evidence. In the objection filed by the respondent, in fact,

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:13:-

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contains no emphatic denial of the claim of maintenance. That may be the reason for not adducing the evidence. It is pertinent to note that in cases involving claim of maintenance, early disposal is the sanction of law. In a such a case, the respondent failed to adduce evidence not only on the first opportunity, but also when he was given second opportunity by this court. Therefore, the attempt of the respondent is nothing but to protract the payment of maintenance. Thus, the contention raised by the respondent in this revision petition praying remand of this matter again cannot be considered and thus the revision at the instance of the husband fails.

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The petitioners who filed RPFC No.191 of 2022 raised contention that the court below ought to have granted Rs.20,000/- as maintenance to the first petitioner and Rs.10,000/- to the second petitioner, since the respondent raised no contention that the petitioners have

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:14:-

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any source of income to maintain themselves and also he did not dispute his income, as canvassed, at the rate of Rs.1 lakh per month.

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It is relevant to note that in this matter, the petitioners claimed for Rs.20,000/- towards maintenance to the first petitioner and Rs.10,000/- each to the second petitioner and third petitioners originally. However, since the second petitioner attained majority, the claim is confined to petitioners 1 and 3 alone. Though the respondent did not dispute his income, the Family Court granted maintenance at the rate of Rs.8,000/- and Rs.7,000/- each. I am of the view that the said amount is not so reasonable in a case where, the respondent not disputed his income at the rate of Rs.1,00,000/- and in consideration of the living cost now prevailing.

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In view of the matter, I am inclined to

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enhance the maintenance at the rate of Rs.10,000/- each

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:15:-

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to the petitioners 1 and 3 and the order is interfered and modified to the above extent.

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In the result, RPFC No.243 of 2021 stands dismissed and RPFC No.191 of 2022 stands allowed.

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It is ordered that the respondent in MC/ the revision petitioner in RPFC No.243 of 2021 shall pay maintenance at the rate of Rs.10,000/- each to the first and third petitioners (the petitioners in RPFC No.191 of 2022) from the date of the petition. Further it is ordered that he shall pay or deposit the entire arrears forthwith. On failure to do so, within two weeks, petitioner 1 and 3 in the MC can enforce the modified order as per law.

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Sd/- A. BADHARUDEEN JUDGE

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rkj

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RO(FC)Nos.243 of 2021 & 191 of 2022 -:16:-

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APPENDIX OF RPFC 243/2021

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PETITIONER ANNEXURES

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ANNEXURE A1 COPY OF MC NO.98/2017 FILED BY THE RESPONDENTS BEFORE FAMILY COURT, PATHANAMTHITTA. ANNEXURE A2 COPY OF THE OBJECTION FILED BY THE PETITIONER IN MC NO.98/2017 BEFORE FAMILY COURT, PATHANAMTHITTA DATED 23/03/2018. ANNEXURE A3 COPY OF THE ORDER IN RP(FAMILY COURT) NO.528/2018 DATED 02/06/2020 PASSED BY THE HON'BLE HIGH COURT. ANNEXURE A4 COPY OF THE COMMON JUDGMENT IN OP NO. 1044/2014, OP NO. 1045/2014 AND OP NO.476/2015 DATED 30/11/2020 PASSED BY THE HON'BLE FAMILY COURT, PATHANAMTHITTA.

Sajju Sudheesh v. S. Sudheesh

Case brief

What is this about?

What did the court decide?

Sajju Sudheesh v. S. Sudheesh

Case brief

What is this about?

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