IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 10 of 2004()
1. R.SUNITHA D/O. V.P. RAVEENDRANATHAN,
... Petitioner
Vs
1. GOPALAKR5ISHNAN @ UNNI, AGED 34 YEARS,
... Respondent
For Petitioner :SRI.JOSE THETTAYIL
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice R.BASANT
Dated :26/08/2008
O R D E R
R. BASANT, J.
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R.P.F.C.No. 10 of 2004
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Dated this the 26th day of August, 2008
O R D E R
The petitioner is the claimant in a petition under Section
125 Cr.P.C., whose claim was turned down by the Family Court
by the impugned order.
2. Marriage is admitted. Separate residence is also
conceded. Birth of the second claimant in the wedlock is also
accepted. The husband contended that the wife is residing
separately without any valid justification. He contended that she
was deserting him without any valid reasons. He offered to
maintain her on condition that she lives with him. It was
contended that the husband was employed in Bangalore as a
Computer Programmer. Maintenance was claimed at the rate of
Rs.1,000/- both for the wife and the child.
3. There was only oath against oath when the parties went
to trial. The claimant wife examined herself as PW1, whereas the
respondent/husband examined himself as RW1. Before the
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Family Court a claim for divorce was filed by the husband on the
ground that the wife was contumaciously guilty of deserting him
during the matrimony. That claim for divorce was allowed as per
order in O.P. 347 of 2002, which was also disposed of on the same day
as the maintenance claim.
4. It is conceded before me that the decree for divorce has now
become final without challenge. The claimant/wife has not challenged
the decree for divorce.
5. The learned counsel for the petitioner submits that even if the
entire case of the husband were accepted, the petitioner/claimant/wife
must have been granted maintenance from the date of the order it
having been conceded unambiguously that she had become a divorced
wife on the date of the impugned order. Under Explanation (b) to
Section 125 Cr.P.C. a divorced wife is also entitled to claim
maintenance under Section 125 Cr.P.C. She does not have the
obligation to live with the husband. The respondent having applied
for and he having been granted divorce with effect from the date of the
order, he cannot have any valid contention to resist the claim for
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maintenance of the first claimant/wife. In these circumstances it must
have been held that the claimant/wife is entitled for maintenance at any
rate from the date of the impugned order as she would fall within the
sweep of Explanation (b) to the expression ‘wife’ under Section 125
Cr.P.C.
6. I find merit in that contention. On and with effect from the
date of divorce the claim of the first claimant/wife for maintenance in
her capacity as divorced wife cannot be turned down at all. She is
therefore certainly entitled for maintenance. There is nothing to show
that she is not unable to maintain herself. During the pendency of the
petition she had an obligation to live with the husband in the absence
of special reasons. The claimant/wife has accepted the decree of
divorce and has not challenged the order dissolving the marriage on the
ground of desertion. In these circumstances, notwithstanding the
contention of the learned counsel for the petitioner that the
claimant/wife is entitled for maintenance during the pendency of the
proceedings, I am of the opinion that in the wake of the unchallenged
order granting divorce on the ground of desertion, the claimant/wife
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cannot have a valid claim for maintenance during the pendency of the
petition.
7. However, I agree that the wife is entitled for maintenance
from the date of the order. The wife, who is guilty of contumacious
conduct in the matrimony and whose husband has secured divorce on
the ground of such contumacious conduct, will still be entitled for
maintenance as a divorced wife under Section 125 Cr.P.C. This
position of law is settled beyond controversy in the decisions in
Rohtash Singh v. Smt. Ramendri & ors. (JT 2000 (2) SC 553),
Moni v. Sujatha (1986 KLT 257) and Valsarajan v. Saraswathy
(2003 (2) KLT 548). It is not necessary to advert to other decisions on
the point. I am satisfied that in any view of the matter the
claimant/wife is entitled for maintenance under Explanation (b) to
Section 125 Cr.P.C. from the date of the impugned order.
8. All that remains to be considered is the quantum of
maintenance which should be awarded. The claim petition was filed as
early as in 2002. The claim was for an amount of Rs.1,000/- p.m. She
contended that her husband was employed at Bangalore as a Computer
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Programmer. The husband/respondent admitted that he was residing
at Bangalore and that he has some knowledge in computers. But he
took the stand that he is not employed as a Computer Programmer, but
was earning Rs.40 to Rs.60/- per day as an autorikshaw driver. I take
note of the broad circumstances. It is idle to assume that the
respondent having admittedly some knowledge of computer, went in
search of employment and started work there as an autorikshaw driver.
In any view of the matter, I am satisfied that the claimant/wife can be
awarded maintenance at the rate of Rs.1,000/- as claimed by her from
the date of the impugned order i.e. 3.6.2003.
9. The learned counsel for the respondent prays that the matter
may be sent back to the Family Court to enable the respondent to
adduce evidence on the quantum of maintenance payable. I find
absolutely no reason to justify such a request for remand. Remand
cannot be a matter of indulgence on the part of the superior court. It is
incumbent that a person claiming a further opportunity must show to
the satisfaction of the court that there are circumstances which deprive
such party of an opportunity to adduce appropriate evidence at the
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appropriate stage. The respondent was obliged to adduce evidence
about his income before the court below. He could not have possibly
resisted the claim for maintenance of his child on any other ground.
There is no explanation as to why necessary and relevant evidence on
the question of quantum of maintenance was not adduced before the
court below. I am, in these circumstances, of the opinion that there is
no merit in the prayer for the luxury of a further opportunity to adduce
evidence on the question of income of the respondent. The said
request for remand is hence turned down.
10. In the result:
a) This R.P.F.C. is allowed.
b) The impugned order is modified. The rejection of the claim
for maintenance of the claimant/wife is set aside.
c) The respondent is directed to pay maintenance at the rate of
Rs.1,000/- p.m. from the date of the impugned order i.e. 3.6.2003.
(R. BASANT)
tm Judge
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