IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 226 of 2006()
1. SHERIN ACHAMMA THOMAS,
... Petitioner
2. APPU, AGED 2 YEARS, (MINOR),
Vs
1. SUNIL P.ELIYAS, S/O.ELIYAS MATHEW,
... Respondent
For Petitioner :SRI.LIJU.V.STEPHEN
For Respondent :SRI.C.M.TOMY
The Hon'ble MRS. Justice K.HEMA
Dated :26/02/2007
O R D E R
K. HEMA, J.
-----------------------------------
R.P. (FC) NO. 226 OF 2006
-----------------------------------
Dated this the 26th day of February, 2007.
O R D E R
The first revision petitioner-wife filed an application under
Section 125 of the Code of Criminal Procedure alleging that the
respondent herein married her and a child (second petitioner) was
born in the wedlock. The matrimonial life was happy in the beginning,
but it allegedly became miserable due to the ill-treatment by
respondent. He was a drunkard, who had no love and affection
towards her and he treated her with cruelty. She was forced to leave
his house for fear of death on 17.10.2002 and thereafter, she is
residing with her parents. The respondent having sufficient means,
neglected to maintain petitioners and he is willfully evading payment of
maintenance. She claimed maintenance allowance at the rate of
Rs. 3,000/- and Rs. 1,500/- to the first and second petitioner
respectively from respondent.
2. The respondent filed a counter statement denying all the
allegations including cruelty. At present he is not having sufficient
income to pay monthly maintenance. The petitioner is a partner in a
business firm having huge income to maintain herself. In such
circumstances, he is not liable to maintain petitioner. To prove the
case, the first petitioner examined herself as PW1.
R.P. (FC)226/2006 2
3. The court below found that the revision petitioner did not
prove cruelty. It was also held that first petitioner was residing
separately for no justifiable reason and hence, not entitled for
maintenance. It was also held that the husband offered to accept
petitioner as well as child, even during trial. But, such offer was
refused by the wife. These are the main reasons for rejecting the
claim made by the wife.
4. Though arguments were raised regarding impropriety of the
finding with respect to the alleged cruelty, on going through the
records and the order under challenge, I find that the court below has
not applied its mind to any of the factors which are to be considered
before granting or rejecting monthly allowance for maintenance. A
reading of Section 125(1) of the Code would show that in an
application for maintenance under the said Section by the wife or child,
court must be satisfied that husband/father having sufficient means
has neglected or refused to maintain the wife or child, who are unable
to maintain themselves. The sufficiency of means, the neglect or
refusal to maintain and the inability of the wife or child to maintain
herself or itself are the three inevitable factors which are to be
established for getting an order of maintenance allowance under
Section 125(1) of the Code. The trial court, as the fact-finding court, is
bound to consider those factors, based on the pleadings, evidence and
R.P. (FC)226/2006 3
other materials available in court. Without entering finding whether
husband/father having sufficient means, neglected or refused to
maintain the wife or child, as the case may be, who are unable to
maintain themselves, no order shall be passed under Section 125(1) of
the Code in an application filed by wife or child.
5. But, a plain reading of the order under challenge would show
that none of the factors relevant under Section 125(1) of the Code
were considered by the trial court. The trial court is the fact-finding
court and it is bound to enter specific findings on these three relevant
aspects, before granting or refusing maintenance. Since the revisional
court cannot enter into any fact-finding for the first time in revision, it
is the duty of the trial court to enter specific findings on the three
factors which are referred above.
6. Needless to say, even in considering whether the child is
entitled for maintenance, the trial court has to enter finding that the
father having sufficient means has neglected or refused to maintain
the child, who is unable to maintain itself. Such a finding is not there
in the order of the court below.
7. The court below has not considered the rival contentions
regarding the sufficiency of means of the husband/father, the alleged
inability of wife or child to maintain herself or itself or even the alleged
neglect or refusal to maintain the wife/child. It is also curious to note
R.P. (FC)226/2006 4
that, though Section 125(1) of the Code specifically provides that the
court may pass order under the subsection only if there is proof of
neglect or refusal to maintain, there is absolutely no finding in the
order whether there was any proof of neglect or refusal to maintain.
Since the order is bereft of specific findings of fact on the three crucial
aspects, namely, i) sufficiency of means of the husband/father
ii) neglect or refusal to maintain the wife or the child and iii) the
inability of the wife or child to maintain herself or itself, the order
under challenge is clearly illegal. The order deserves to be set aside
and I do so.
8. I am not expressing any view regarding the rival contentions
raised in this revision on the question of cruelty, sufficiency of means
etc., since the case has to be remanded for fresh consideration and
disposal. The parties are at liberty to raise those contentions before
court below.
9. However, learned counsel for the revision petitioner
submitted that the order of maintenance passed in favour of the child
may not be disturbed, especially since the respondent has not
challenged the said order. In the peculiar facts and circumstances of
this case, I find that respondent shall pay Rs. 600/- as monthly
maintenance, which can be treated as an order of interim maintenance
to be passed during pendency of the proceedings before the trial court.
R.P. (FC)226/2006 5
The quantum of such maintenance however, will be subject to fresh
decision of the trial court.
10. In the result, the order under challenge is set aside, but
respondent shall pay monthly allowance to the child at the rate of
Rs. 600/- as ordered by lower court as interim maintenance during
pendency of the proceedings before the court below. The case is
remanded to court below for fresh consideration and disposal in
accordance with law.
It is made clear that the court shall enter specific findings
regarding the three crucial aspects, which are essentially to be
considered under Section 125(1) of the Code and such other matters
which may be relevant for consideration, to grant or refuse the claim
for maintenance.
Parties shall appear before the trial court on 19.03.2007. The
trial court shall dispose of the matter before 19.04.2007.
This revision petition is allowed.
K. HEMA, JUDGE
smp