Counter petitioner in M.C.No.26/2013 on the file of the Family Court, Nedumangad is the revision petitioner herein.
2. The case was filed by the respondents herein through the first respondent claiming maintenance for them from the revision petitioner under Section 125 of the Code of Criminal Procedure.
3. It is alleged in the petition that revision petitioner married the first respondent herein on 24.03.2008 and in that wedlock, second respondent was born. They are now residing separately and he was not providing maintenance to the petitioners. She is not having any job to maintain herself and the child. The counter petitioner is getting a monthly income of Rs.30,000/- per month and first petitioner requires Rs.5,000/- per month and second petitioner also requires Rs.5,000/- per month and she claimed maintenance at the rate of Rs.5,000/- per month each for the respondents herein who are the petitioners before the court below.
4. Revision petitioner who is the counter petitioner in the lower court appeared and filed the detailed counter admitting the marriage and the paternity of the child. According to him, the first petitioner deserted the counter petitioner without any valid reason and he is prepared to maintain her and child and in fact, he had even taken a rented house and while they were residing there, she was taken away by his brothers and thereafter, she has filed this application for maintenance. He is a coolie worker and getting only meager income. Out of the income, he will have to maintain his aged parents as well. So, the petitioners are not entitled to get maintenance and he prayed for dismissal of the application.
5. First respondent was examined as PW1 and Exts.P1 to P4 were marked on their side. The counter petitioner who is the revision petitioner herein was examined as CPW1.
6. After considering the evidence on record, the court below found that the first petitioner is residing separately on justifiable grounds and she has no independent income to maintain herself and respondent is capable of maintaining her and directed the revision petitioner to pay monthly maintenance of Rs.4,000/- to the first petitioner and Rs.2,000/- to the second petitioner from the date of petition. This order is being challenged by the revision petitioner before this court.
7. The revision petitioner filed Crl.M.A.No.5494/14 for reception of additional documents namely the judgment passed in O.P.No.62/13. This court disposed of that petition on the ground that since it is not a certified copy, it cannot be received in evidence and marked. However, the factum of restitution of conjugal rights granted can be considered while disposing the revision.
8. Since the respondent had appeared on admission, this court felt that the revision can be admitted and it can be disposed of on merit after hearing both sides.
9. The Counsel for the revision petitioner attacked the order of the trial court on two grounds. i) that in spite of ex parte order of restitution of conjugal rights granted by the Family Court, she is not interested in coming and living with him and as such, she is not entitled to get maintenance and this aspect has not been considered by the court below while passing the order. ii) Further, the court below has not given any reason for granting maintenance from the date of petition as reason will have to be given for that purpose and without giving reason, if an order has been passed, directing the petitioner to pay maintenance from the date of petition that is illegal and the same has to be interfered by this court. Further, he is a painter and he is getting only occasional employment and as such, the quantum of maintenance ordered is also excessive.
10. On the other hand, the Counsel for the respondent submitted that, she had given cogent reason for not residing with the revision petitioner and that has been considered by the court below as well. Further, he had filed the application for restitution of conjugal rights while petition was pending before the Family Court. So, it is only a ruse for avoiding maintenance that such a petition has been filed. That is not a ground for refusing maintenance as well. Further, court below had considered all the aspects and provided proper maintenance which does not call for any interference at the hands of this court.
11. It is an admitted fact that the revision petitioner married the first respondent in the year 2008 and in the wedlock, the second respondent was born. It is also an admitted fact that now they are residing separately. The case of the first respondent was that, since she had to face the cruelty at the hands of the revision petitioner and his family members including his father, her life in the house was miserable which made her to live separately with the child. It is true that an application for restitution of conjugal rights has been filed by the revision petitioner as O.P.No.62/2013 and an ex-parte order of restitution of conjugal rights has been obtained. However, when PW1 was examined in the court, she had categorically stated that, the offer made by the revision petitioner to maintain her is not bona fide and while they were residing together, his father had misbehaved with her and even tried to kill the child and even in the rented house, he came drunk and ill treated her and he was not providing maintenance even at that time and that was the reason for her refusal to live with the revision petitioner. Further, it was admitted by CPW1 that, in respect of the above incident, a case has been registered and that is pending. Further, the document that has been produced before this court has not been produced before the court below though the judgment in this case has been passed after the petition for restitution for conjugal rights has been disposed of by the Family Court. So, that only shows that, that has been filed for the purpose of getting a protection to avoid payment of maintenance and as a ground for divorce later to be raised by the petitioner, if the order has not been complied with or not with a bona fide intention to take the respondents back. Further, it is settled law that, even if an order for restitution of conjugal rights has been obtained itself is not a ground to deny maintenance, if the wife is able to establish that her refusal to live with him in the matrimonial home or with the husband is on justifiable ground and with valid reasons. The cruelty met by her in the hands of the husband and his father has been spoken to by PW1. Further, no steps have been taken by the revision petitioner so far to enforce the decree for restitution of conjugal rights. So, under the circumstances, the court below was perfectly justified in coming to the conclusion that the first respondent herein is justified in not residing with the revision petitioner and she is entitled to get maintenance.
12. There is no evidence adduced on the side of the revision petitioner to prove that first respondent is having independent income to maintain herself. Further, he had also no case that he is incapable of working due to any permanent disability and earn money to provide maintenance to the wife and child. As far as the child is concerned, he had no other excuse except to pay maintenance as he had got a responsibility to provide proper maintenance to the welfare of the child. As regards the wife is also concerned, if it is proved by the wife that she is unable to maintain herself and her husband is capable of maintain her and in spite of that he is not paying maintenance, then, she is also entitled to get maintenance from her husband. In this case, it was admitted by CPW1 that he is a painter by profession and getting Rs.500/- per day. But, the Counsel for the revision petitioner submitted that it is only a casual employment. Even if it is a casual employment, during the period when he is not having employment of painting, he will have to go for some other work and earn money and provide maintenance to the wife and child. So, under the circumstances, the submission made by the Counsel for the revision petitioner that he is not able to provide maintenance to the wife and child cannot be accepted.
13. As regards the quantum is concerned, it is settled law that maintenance will have to be granted taking into account the status of the parties, the manner in which she was living at the time when they were living together and also considering the living condition and the cost of living in the society. It is not a pittance that has to be awarded as maintenance and the maintenance awarded must be reasonable for the purpose of meeting the requirements for leading a decent life by the wife and child as well. Further, he has to maintain his aged parents is not a ground to deny maintenance to the wife and child as well. Further, the petitioner has produced Ext.P1 discharge card issued by Govt. Hospital, Attingal and Ext.P2 Summary transactions of treatment issued from Sree.Gokulam Medical College Research Foundation to show that the first respondent is having some illness and she will have to undergo treatment for the same as well. So, she requires some amount for her treatment purposes. Further, the child is also having some health problem, for which also some amount is required. So, considering these aspects, the amount of Rs.4,000/- per month to the first petitioner and Rs.2,000/- to the second petitioner awarded by the Family Court as maintenance cannot be said to be excessive which requires the interference of this court to reduce the amount.
14. As regards the other question is concerned, whether a reason has to be given for awarding maintenance from the date of petition, the learned Counsel for the revision petitioner had relied on the decision reported in Shail Kumari Devi and Another Vs. Krishan Bhagwan Pathak [(2008)9 Supreme Court Cases 632], wherein, this has been dealt with in Paragraph 43 of the judgment which reads as follows:
“We therefore, hold that while deciding an application under Section 125 of the Code, a Magistrate is required to record reasons for granting or refusing to grant maintenance to wives, children or parents. Such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary. No special reasons, however, are required to be recorded by the court. In our judgment, no such requirement can be read in sub-section (1) of Section 125 of the Code in absence of express provision to that effect.”
In the decision, it has been clearly mentioned that for granting maintenance or refusing maintenance, court has to give special reasons. Court can order maintenance from the date of petition or from the date of order. For that purpose, no reason is required to be given. The same view has been reiterated in the decision reported in Bhuwan Mohan Singh Vs. Meena and Others [2014 (3) KHC SN 25 (SC)], wherein it has been observed that maintenance can be awarded from the date of order or from the date of application. For awarding maintenance from the date of application, express order is necessary. But, special reasons not required to be recorded. Further, a reading of Section 125 of Code of Criminal Procedure will go to show that, if the order is passed, directing the counter petitioner to pay the amount from the date of order or from the date of petition as the case may be, then, the revision petitioner is liable to pay maintenance as directed by the court in the order. If any specific date is mentioned, then, it can only be presumed that the order will take effect from the date of order not from the date of petition. So, in order to get maintenance from the date of petition, an express order is required and no reason need be stated for that purpose.
15. Further, in the decision reported in Bhuwan Mohan Singh's case (supra), the Supreme Court has observed that the delay in disposal of maintenance cases can be taken as a ground for awarding maintenance from the date of petition itself. So, under the circumstances, the court below was perfectly justified in awarding maintenance from the date of petition as well. So, under the circumstances, there is no merit in the revision and the order does not call for any interference and the petition is liable to be dismissed.
In the result, the petition is dismissed.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge