Merin Kurian Vs Zachariah P.M. — Kerala HC (2025) — LawSathi Research

Merin Kurian Vs Zachariah P.M. — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Revision petition allowed. Respondent directed to provide maintenance from the date of the petition: Rs.6,000/- per month to the 1st petitioner, Rs.7,000/- per month to the 2nd petitioner and Rs.6,000/- per month to the 3rd petitioner; the Family Court's denial of maintenance to the 1st petitioner set aside.

Issue for consideration

Whether the 1st petitioner (wife), whose case was that she lost her job one month before filing the petition, is entitled to maintenance from the respondent husband, notwithstanding the Family Court's view that failure to positively prove the job loss meant she could maintain herself. +1 more

Court's answer

An admitted fact need not be proved: the fact that the 1st petitioner lost her job one month prior to the petition was admitted by the respondent in his objection statement as well as in his chief examination, so the Family Court erred in presuming she still had a job for want of positive evidence.

Ratio / Principle

Since the 1st petitioner does not have any job or source of income, the respondent, being her husband, is legally and morally bound to maintain her.

Key takeaways

The specific pleading in the maintenance petition that the petitioners require the claimed amounts was not controverted in the respondent's objection statement.ratio¶40
Taking into account the entire facts and circumstances, the 1st petitioner requires Rs.6,000/- per month for her maintenance.ratio¶41
Considering the requirements of the 2nd and 3rd petitioners (aged 10 and 7 at filing, both students) and the means of the respondent, the monthly maintenance granted by the Family Court needed enhancement to Rs.7,000/- per month for the 2nd petitioner and Rs.6,000/- per month for the 3rd petitioner, which would be just and reasonable.

Detailed headnote1 paragraphs

Kerala High Court (Dr. Justice Kauser Edappagath) in RPFC No. 147 of 2020 revises the order dated 29.02.2020 of the Family Court, Kottayam at Ettumanoor in M.C. No. 155 of 2016. The Family Court's dismissal of the wife's maintenance claim is set aside on the principle that an admitted fact need not be proved: the respondent had admitted, in his objection statement and chief examination, that the 1st petitioner lost her job (as a Clerk with Malayalam Bankers) one month before filing; with no job or source of income, the husband is legally and morally bound to maintain her. Her specific plea of Rs.8,000/- per month stood uncontroverted. Maintenance awarded from the date of the petition: Rs.6,000/- p.m. to the wife; children's maintenance enhanced from Rs.5,000/- to Rs.7,000/- p.m. (2nd petitioner) and from Rs.4,000/- to Rs.6,000/- p.m. (3rd petitioner). Revision petition allowed. No statutory provision or precedent is cited in the judgment.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

WEDNESDAY, THE 19^TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946

RPFC NO. 147 OF 2020

AGAINST THE ORDER DATED 29.02.2020 IN MC NO.155 OF 2016 OF FAMILY COURT, KOTTAYAM AT ETTUMANOOR

REVISION PETITIONERS/PETITIONERS:

1 MERIN KURIAN AGED 38 YEARS, WIFE OF ZACHARIAH.P.M., HOUSSEWIFE, ANCHERIPUTHENPURACKAL HOUSE, VADAVATHOOR P.O., NEAR PONPALLY, KOTTAYAM.

2 ABHIJITH ZACHARIAH (MINOR) AGED 14 YEARS, SON OF ZACHARIAH.P.M., ANCHERIPUTHENPURACKAL HOUSE, VADAVATHOOR P.O., NEAR PONPALLY, KOTTAYAM, REPRESENTED BY MOTHER MERIN KURIAN.

3 ASHIN ZACHARIAH(MINOR) AGED 11 YEARS, SON OF ZACHARIAH.P.M., ANCHERIPUTHENPURACKAL HOUSE, VADAVATHOOR P.O., NEAR PONPALLY, KOTTAYAM, REPRESENTED BY MOTHER MERIN KURIAN.

BY ADVS. BASIL MATHEW SRI.NINAN JOHN SMT.SANJANA SARA VARGHESE ANNIE

RESPONDENT/RESPONDENT:

ZACHARIAH P.M. AGED 46 YEARS, SON OF LATE MATHEW, ASSISTANT PROFESSOR,

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PULLUPARAMPIL HOUSE, MALAM P.O., KOTTAYAM.

BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB SRI.V.VINCENT DIDACOSE SMT.RAVEENA NAZ

THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O R D E R

This Revision Petition has been filed challenging the order passed by the Family Court, Kottayam at Ettumanoor in M.C. No. 155 of 2016 dated 29.02.2020.

The 1^st petitioner is the wife of the respondent. The 2^nd and 3^rd petitioners are the children of the 1^st petitioner and the respondent. The petitioners filed a maintenance case against the respondent claiming monthly maintenance at the rate of Rs.8,000/- for the 1^st petitioner and Rs.10,000/- each to the 2^nd and 3^rd petitioners. The Family Court after evaluating the evidence disallowed the claim of the 1^st petitioner for maintenance and granted monthly maintenance of Rs.5,000/- to the 2^nd petitioner and Rs.4,000/- to the 3^rd petitioner. It is challenging the said order, the petitioners preferred this revision petition.

I have heard Sri.Basil Mathew, the learned counsel for the petitioners and Smt.K.R.Monisha, the learned counsel

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for respondent.

The marriage and paternity are not in dispute. Admittedly, the petitioner is a Government employee. He is working as Assistant Professor at Rajiv Gandhi Institute of Technology, Pampady. According to the petitioners, the respondent is drawing a monthly salary of Rs.75,000/-. But there is no evidence to prove the said fact. However, the respondent has admitted that he is drawing a monthly salary of Rs.58,000/-.

The Family Court disallowed the claim of the 1^st petitioner for maintenance on the ground that there is no evidence to prove that she is not able to maintain herself. The 1^st petitioner has admitted in the petition and when she was examined as PW1, that she was working as a Clerk in a private finance company, namely Malayalam Bankers. However, her definite case is that she lost her job one month prior to the filing of the petition. The Family Court found that since she had admitted that she was having job and lost it

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one month prior to the filing of the petition, it was up to her to prove the same. The Family Court further found that in the absence of any positive evidence to show that she has lost the job it has to be presumed that she is still having job and is able to maintain herself. I cannot subscribe to the said finding of the Family Court. The fact that the 1^st petitioner lost her job one month prior to the petition is not in dispute. In other words, the fact that the 1^st petitioner has lost her job prior to one month has been admitted by the respondent in the objection statement as well as in his chief examination. So an admitted fact need not be proved. Since the 1^st petitioner does not have any job or source of income, the respondent being her husband is legally and morally bound to maintain her. The 1^st petitioner has claimed Rs.8,000/- per month as maintenance and the 2^nd and 3^rd petitioners have claimed Rs.10,000/- per month as maintenance. There is a specific pleading in the petition for maintenance that the petitioners require the above mentioned amount for their

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maintenance. It is pertinent to note that the said specific pleading has not been controverted in the objection statement.

Taking into account the entire facts and circumstances of the case, I am of the view that the 1^st petitioner requires Rs.6,000/- per month for her maintenance. So far as the children are concerned, only the quantum is in dispute. At the time of filing the petition in the year 2016, the 2^nd petitioner was aged 10 years and the 3^rd petitioner was aged 7 years. Both are students and studying in school. Considering the requirements of the 2^nd and 3^rd petitioners and the means of the respondent, I am of the view that the monthly maintenance granted by the Family Court needs to be enhanced. Rs.7,000/- per month to the 2^nd petitioner and Rs.6,000/- per month to the 3^rd petitioner would be just and reasonable.

For the reasons stated above, the finding of the Family Court in the impugned order that the 1^st petitioner is not

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entitled to maintenance is hereby set aside. The respondent is directed to provide maintenance to the 1^st petitioner at the rate of Rs.6,000/- per month, to the 2^nd petitioner at the rate of Rs.7,000/- per month and to the 3^rd petitioner at the rate of Rs.6,000/- per month from the date of the petition.

The revision petition is allowed as above.

Sd/-

DR. KAUSER EDAPPAGATH

JUDGE

APA

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APPENDIX OF RPFC 147/2020

PETITIONER ANNEXURES

ANNEXURE A1 CERTIFIED COPY OF THE ORDER M.C.NO.155/2016 DATED 29TH DAY OF FEBRUARY, 2020 ON THE FILE FAMILY COURT, KOTTAYAM AT ETTUMMANOOR.