IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 272 of 2008()
1. M.N. RAVEENDRAN NAIR, AGED 55 YEARS,
... Petitioner
Vs
1. INDIRA, AGED 67 YEARS,
... Respondent
For Petitioner :SRI.C.S.MANILAL
For Respondent :SRI.JOSEPH GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :04/03/2010
O R D E R
M.N. KRISHNAN, J.
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R.P.(F.C.) NO. 272 OF 2008
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Dated this the 4th day of March, 2010.
O R D E R
This revision is preferred against the order of the Family
Court, Thiruvalla in M.C.337/07. The revision petitioner is the
husband who is aggrieved by the decision of the Family Court
whereby it rejected his request for varying or canceling the
maintenance ordered to the wife and allowing enhancement of
the maintenance to the wife at Rs.1,000/-.
2. I had the privilege of hearing the counsel for the
wife and I had perused the records. A perusal of the revision
petition would reveal that a contention is raised to the effect
that in an application filed for variation by the husband
enhancement cannot be granted at the request of the wife. It
is true that Family Court is exercising functions u/s 125 and
127 of Cr.P.C. as a criminal Court but it has also to be borne
in mind though it is a proceeding covered by the Criminal
Procedure Code it has got all the characteristic of a civil
litigation. It has to be remembered that when the husband
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has moved an application for cancellation or variation of the
order the wife in the written statement had denied the ground
for varying and at the same time requested the Court to
enhance the maintenance. Technicality shall not prevent
justice being done and both the parties before the Court below
had understood the matter in the correct perceptive and had
adduced evidence with respect to the annulment of
maintenance as well as for enhancement of maintenance.
There is no point now in dragging one of the parties to another
proceedings again in the form of an application u/s 127 Cr.P.C.
3. In the decision reported in P.N.Manikkuttan Nair
v. K.R.Girija Amma 2000 Crl.L.J.3726 it is stated that when
an application for cancellation is made on the fact that the wife
became an earning member that itself is a change of
circumstance which can weigh with the court and it can change
the order.”
4. Similarly a learned Judge of the Madras High Court
in the decision reported in Alagappan v. Thilagam (2000
Crl.L.J.3239) held that though the order of maintenance is
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passed on the basis of compromise entered into between the
parties application for enhancement of maintenance would still
be maintainable. Therefore let me first consider about the
husband’s contention. The husband would contend that both
had entered into a compromise. He was having employment
abroad and that is why when persuaded by the Court and the
counsel he agreed for a compromise by fixing the maintenance
at Rs.700/-. According to him by the conduct of the wife by
filing innumerable number of litigations he had lost his job and
as the wife is now in a better comfortable position the order
has to be cancelled. I had gone through the evidence of PW1
and RW1. The evidence of husband itself would reveal that he
has married again and he is having two children and he was in
the foreign country for a large number of years. When such is
the situation he has necessarily to look after his wife.
Secondly, admittedly they had entered into a compromise and
the wife was a retired nurse and there was no change of
circumstance thereafter. He himself has admitted that except
the factors proposed nothingelse is available to show her
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income or reception of higher income so as to vary the order
u/s 127 Cr.P.C. Therefore the Family Court was right in
rejecting the prayer of the husband.
5. So far as the wife is concerned as stated by me it is
permissible in the light of the decision referred to above that
even an order of maintenance on the basis of a compromise
can be enhanced. The wife would depose before Court that
the husband is having substantial income and he has large
extent of properties. She would also depose that she had
retired and had started receiving pension only in April. Now
the escalation of price had certainly given rise to high cost of
living and a nominal increase of Rs.300/- by the Family Court
cannot be said to be on the higher side under the facts and
circumstance of the case. Therefore I do not find any ground
to interfere with the grounds alleged and therefore the revision
is dismissed.
M.N. KRISHNAN, JUDGE.
ul/-