Dismissed

Kurian v. Josepheena

Kerala HC9 Nov 2023RPFC/385/2014

Case brief

AI extract

What is this about?

High Court rejected the argument that a revision petition should abate upon the petitioner's death. Upholding the Family Court order, the Court held since the deceased was a pensioner and the wife was aged, the maintenance order was not erroneous under Section 19(4) of the Family Courts Act.

What did the court decide?

Revision petition dismissed; order directing payment of maintenance to respondent upheld.

Kurian Vs Josepheena — Maintenance and Alimony | Kerala HC (2023)

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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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THURSDAY, THE 9^TH DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945

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RPFC NO. 385 OF 2014

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AGAINST THE ORDER/JUDGMENT MC 86/2013 OF FAMILY COURT,THRISSUR REVISION PETITIONER/S:

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KURIAN AGED 65 YEARS S/O.ZACHARIA,KODIYATH HOUSE, EX-SERVICEMEN,PO CHIYYARAM,THRISSUR

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BY ADV SRI.C.A.ANOOP

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RESPONDENT/S:

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JOSEPHEENA, AGED 61 YEARS, W/O.KURIAN,KODIYATH HOUSE, PO CHIYYARAM,THRISSUR 680 026.

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THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RPFC NO. 385 OF 2014

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(Dated this the 9^th day of November, 2023)

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ORDER

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The revision petition is filed challenging the correctness of the order in M.C.No.86/2013 of the Family Court, Thrissur directing the revision petitioner to pay the respondent – his wife – monthly maintenance allowance @ Rs.2,000/- from the date of petition. The revision petitioner was the respondent and the respondent was the petitioner before the Family Court.

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Brief facts

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The respondent had filed the application under Section 125 of the Code of Criminal Procedure (in short, 'Code'), inter-alia, asserting that she was married to the revision petitioner on 29.12.1974. Three daughters were born in the wedlock. The revision petitioner was working in the Indian Army. He is a pensioner and also doing real estate business. He earns an average income of not less than Rs.25,000/-. The respondent is 60 years of age and is suffering from various ailments. She requires atleast

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RPFC NO. 385 OF 2014

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Rs.10,000/- towards her monthly maintenance allowance. The revision petitioner refused to maintain her. Hence, the application.

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The revision petitioner resisted the application by filing a written objection and contending that he is only getting a meager income as pension. He is also suffering form acute asthma. The pension that he receives is insufficient to meet his own expenses. The respondent is living with her daughters. The respondent is not entitled to maintenance. Hence, the application may be dismissed.

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The respondent was examined as PW1 and the revision petitioner was examined as RW1 and Exts.D1 to D6 were marked on his side.

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The Family Court, after analysing the pleadings and materials on record, partly allowed the application by directing the revision petitioner to pay monthly maintenance allowance to the respondent @ Rs.2,000/-.

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It is assailing the said order; the present revision

RPFC NO. 385 OF 2014

petition is filed.

Heard; Sri.C.A.Anoop, the learned Counsel appearing for the revision petitioner.

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Sri.C.A.Anoop, on instructions submitted that the revision petitioner is no more. Therefore, the revision petition may be dismissed as abated.

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A Full bench of this Court in Pazhani vs. State of Kerala [2017 (1) KHC 341 FB] has declared the law that if pending an appeal/revision petition, the appellant/revision petitioner dies, and there is a sentence of fine imposed on him, then the near relatives of the deceased can come on record to prosecute the appeal/revision petition. However, the revision petition cannot be dismissed as abated.

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In the case at hand, there is an order of maintenance passed in favour of the respondent. An order of maintenance if not paid as directed by the Court has to be recovered in the same manner as levy of fine under Section 421 of the Code. Therefore, the revision petition

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RPFC NO. 385 OF 2014

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cannot be dismissed as abated as contended by the learned counsel appearing for the revision petitioner.

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Even though the revision petition was filed on 21.10.2014, this Court has not admitted the revision petition and has not passed any interim order. Hence, I proceed to decide whether the revision petition warrants to be admitted or not.

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Indisputably, the revision petitioner is an ExServiceman. He admits his marriage with the respondent. The respondent is a lady, who was aged 60 years at the time of filing the application. Now she has crossed 70 years of age.

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Ext.D2 pension certificate shows that the revision petitioner was getting a monthly pension of Rs.8,000/-. On the contrary the revision petitioner has not produced any material to substantiate that the respondent has any income.

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The Family Court after considering the materials

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RPFC NO. 385 OF 2014

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placed on record, particularly Ext.D2 pension certificate and the fact that the respondent was aged 60 years at the time of filing the application, deemed it fit and proper to direct the revision petitioner to pay the respondent monthly maintenance allowance @ Rs.2,000/-.

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After bestowing my anxious consideration to the pleadings and materials on record, and taking note of the well settled principles of law that the man is bound to maintain his wife, I am of the definite view that there is no error, illegality or impropriety in the impugned order passed by the Family Court warranting interference by this Court under Section 19(4) of the Family Courts Act, 1984.

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The revision petition is devoid of any merit and is consequentially dismissed at the threshold.

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Sd/- C.S.DIAS JUDGE

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rkc/09.11.23

Kurian v. Josepheena

Case brief

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Kurian v. Josepheena

Case brief

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