IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 50 of 2009()
1. THIYYAKANDI RAMACHANDRAN,
... Petitioner
Vs
1. SHEENA, D/O.LATE PARAMBATH BALAN,
... Respondent
2. RISHEK, AGED 16 YEARS,MINOR.
3. ANEESH, AGED 14 YEARS,MINOR.
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SMT.LATHA PRABHAKARAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :02/12/2009
O R D E R
P.S.GOPINATHAN, J.
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R.P.(FC).No.50 of 2009.
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Dated this the 2nd day of December, 2009.
O R D E R
The Family Court, Kozhikode in MC.No.45/2007 by
order dated 6.5.2008, directed the revision petitioner to pay
monthly maintenance at the rate of Rs.750/- each to
respondents 1 and 2, and at the rate of Rs.500/- to the 3rd
respondent under Section 125 of the Code of Criminal
Procedure. Assailing the legality, correctness and propriety
of that Order, this Revision Petition was filed.
2. It is admitted that the first respondent is the
divorced wife of the revision petitioner and that
respondents 2 and 3 are the children of the revision
petitioner born in the wedlock with the first respondent. It
is also admitted that now the relationship between the
revision petitioner and the first respondent was dissolved by
the order on a joint petition before the Family Court. Thus,
R.P.(FC).No.50 of 2009.
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the first respondent is the divorced wife. One of the
contentions that was urged by the revision petitioner is that
at the time of filing of the joint petition under Sec.13-B of
the Hindu Marriage Act for divorce, the first respondent
had given up her claim for maintenance. Neither the order
of the Family Court granting divorce, nor any document was
produced to show that the first respondent had at any time
given up the claim for maintenance. It is crucial to note
that the revision petitioner had not advanced any contention
before the trial court or any evidence was let in to that
effect. Since such contention was not taken before the trial
court, it is not at all entertainable for the first time in
revision. Adding to that there is no material to conclude
that the first respondent had at any time given up the claim
for maintenance. The liability to provide maintenance to
respondents 2 and 3 is not challenged.
3. The learned counsel for the revision petitioner
submitted that expanding the term ‘wife’ mentioned in
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Sec.125 Crl.P.C. by including divorced wife through an
explanation is against the object of the legislation. It was
further argued that the term `wife’ mentioned in Sec.125
refers only to wife and no other category can be brought
into. In support of his argument the learned counsel had
relied upon the decision reported in Savitaben Somabhai
Bhatiya v. State of Gujarat [2005(2) KLT 65 (SC)]. At
para.18 it is stated that:
“[t]he legislative intent being clearly
reflected in S.125 of the Code, there is no
scope for enlarging its scope by introducing
any artificial definition to include woman not
lawfully married in the expression ‘wife’.”
That is a case relating to the claim by a woman who was
alleged to have been married by a man with a living wife in
an earlier marriage. It is in the above factual background
the Apex Court observed that wife does not include a
woman who is not lawfully married and that the scope of
Sec.125 Crl.P.C. can’t be enlarged by introducing artificial
definition to include woman not lawfully married in the
R.P.(FC).No.50 of 2009.
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expression ‘wife’. Facts of this case has no similarity with
the facts of the reported case. The ruling in that case can
no way be applied to the case on hand.
4. Going by Sec.125 of the Code of Criminal
Procedure and the Explanation there to, I find that
explanation to Sec.125 of the Code of Criminal Procedure,
in fact, does not include any other category of person to the
term wife. It only explain that the wife mentioned in
Sec.125 would also include a woman who has been divorced
or had obtained divorce and has not remarried. It only
extends the liability of the husband to maintain his divorced
wife till she gets remarried and no other category of
woman, who is otherwise married or any concubine.
5. The contention that was advanced has been
rejected by this Court in Valsala v. Surendran (1979(KLT
160), Sadasivan Pillai v. Vijayalakshmi (1987(1) KLT
381) and Balan v. Visalakshy (1985 KLT 967). In Balan’s
case it was also held that the status is not dependent upon
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the mode of divorce.
6. Such being the status of the parties and the
rights, I find little reason to accept the argument advanced
by the learned counsel for the revision petitioner. The first
respondent being a divorced wife she would come within
the ambit of Explanation (b) to Sec.125 of the Code of
Criminal Procedure and is entitled to get maintenance.
7. Though the revision petitioner had got a case that
the first respondent had properties and she is getting
income, there is no material to come to the conclusion that
the respondents are having any source of income. The
revision petitioner cannot escape from the liability to
maintain the respondents. Respondents 2 and 3 were aged
14 and 12 respectively as on the date of the petition.
Taking into account the value of the essential commodities
and the need of the respondents, the quantum of
maintenance awarded by the trial court is not at all
excessive. In fact, it is on a lower side. The revision
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petitioner has got a contention that he is an Electrician,
getting income of Rs.125/- only per day. That argument is
devoid of any merit. Now-a-days, even coolies are getting
higher wages. The revision petitioner can find out means
for providing minimum requirement to the respondents.
The amount awarded by the trial court is not beyond the
means of the revision petitioner. No interference is
warranted in the impugned order.
In the result, this revision petition is dismissed.
P.S.GOPINATHAN, JUDGE.
Kvs/-