This is an application filed by the respondent in Crl.M.P. 393/2012 in M.C. 200/2013 before the Family Court, Ernakulam to quash the interim order of maintenance passed by the court below under section 482 of Code of Criminal Procedure.
2. It is alleged in the petition that the petitioner is the respondent in M.C. 200/2013 filed by the first respondent herein, who is the wife of the petitioner, claiming maintenance. It is alleged in the maintenance petition that the marriage between the petitioner and respondent was solemnized on 15.4.2006 at Sree Bhadra Auditorium, South Parur. Thereafter, they lived together as husband and wife. Due to some difference of opinion and also due to ill treatment, she had to leave the company of the petitioner and thereafter he has not provided any maintenance to the petitioner. She has no income of her own to maintain herself. The petitioner is having good job and getting better income. So, she claimed maintenance at the rate of Rs.7,000/- per month. She filed Crl.M.P. 393/2013 for interim maintenance, at the rate of Rs.5,000/- per month.
3. The petitioner appeared in the petition and filed objection stating that the marital relationship lasted only for eight months and thereafter due to the adamant attitude of first respondent herein, she had left the house without any reasonable cause and she is not entitled for any maintenance. Further, the first respondent has filed O.P. for divorce and that was allowed and it is thereafter that the first respondent filed the application for maintenance.
4. According to the petitioner without considering the contentions, the learned Family Judge has ordered interim maintenance at the rate of Rs.2,500/- per month which, according to the petitioner, is unsustainable in law and the same is liable to to interfered with. So he filed the above application seeking to set aside the order of interim maintenance passed by the court below.
5. Heard the counsel for the petitioner, counsel for the first respondent who appeared today and the learned Public Prosecutor who appeared for the second respondent.
6. Counsel for the petitioner submitted that, in fact, there is no liability to pay maintenance as she is a divorced wife. Further, he will have to look after his aged mother and no evidence has been adduced to show the income of the petitioner as well. Since she is a divorced wife and the marital relationship had lasted only for eight months, in fact, she is not entitled to claim any maintenance and so the lower court should not have granted interim maintenance.
7. On the other hand, the counsel for the first respondent submitted that the court below had considered the pleading of both parties and also considered the pathetic condition of the 1st respondent and granted a reasonable amount as interim maintenance.
8. It is an admitted fact that the marriage between the petitioner and the 1st respondent was solemnized in the year 2006 and thereafter their relationship lasted only for eight months and thereafter they started living separately. It is also an admitted fact that the first respondent filed O.P.922/2011 for divorce and that petition was allowed and ex parte decree for divorce was granted on 30.04.2012. It is also an admitted fact that O.P. 738/2012 was filed by the respondent for recovery of certain articles said to have been given at the time of marriage which are with the petitioner and the same is pending. The first respondent had no case that after divorce, she contracted second marriage.
9. Section 125 of Code of Criminal Procedure says that even a divorced wife is entitled to get maintenance till she gets re-married from the former husband, if she is able to show that she has no income to maintain herself and the former husband is having income and capacity to maintain her as well. It is true that there is no evidence, as such, before the court regarding the income of each party. The petitioner has no case that the respondent is having any income of her own to maintain herself as well. So, under the circumstances, what is to be looked into at the time of considering the application for interim maintenance is whether the former husband is capable of paying maintenance to the respondent and the actual quantum etc has to be considered on the basis of evidence later. Petitioner has no case that he is incapable of working or getting any income. So under the circumstances and also considering the present state of cost of living, the amount of Rs.2500/- passed by the court below as interim maintenance cannot be said to be excessive in order to get the interference of this court to reduce the amount at this stage. So there is no merit in the petition. The petition is liable to be dismissed.
10. Further, considering the fact that the M.C. is of the year 2013 and the petitioner is a divorced wife, the lower Court is directed to take all endeavors to expedite and dispose of the case giving priority to this case.
In the result this petition is dismissed with the above observations.
Office is directed to communicate this order to the lower Court immediately.
Sd/- K.RAMAKRISHNAN, JUDGE jjj