High Court Kerala High Court

Thiyyakandi Ramachandran vs Sheena on 2 December, 2009

Kerala High Court
Thiyyakandi Ramachandran vs Sheena on 2 December, 2009
       

  

  

 
 
  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.

                 = = = = = = = = = = = =
                   R.P.(FC).No.50 of 2009.
                 = = = = = = = = = = = =

         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.

-: 2 :-

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

R.P.(FC).No.50 of 2009.

-: 3 :-

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.

-: 4 :-

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

R.P.(FC).No.50 of 2009.

-: 5 :-

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

R.P.(FC).No.50 of 2009.

-: 6 :-

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/-