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Alphonsa Joseph and Others V/S Anand Joseph


Company & Directors' Information:- ANAND PRIVATE LIMITED [Strike Off] CIN = U00000DL2001PTC109063

Company & Directors' Information:- ANAND PRIVATE LIMITED [Strike Off] CIN = U99999MH1975PTC018274

Company & Directors' Information:- ANAND AND ANAND PVT. LTD. [Amalgamated] CIN = U99999DL1983PTC016655

Company & Directors' Information:- ANAND AND CO. P. LTD. [Active] CIN = U74899DL1988PTC031346

Company & Directors' Information:- JOSEPH AND CO PVT LTD [Active] CIN = U01211KL1954PTC000507

Company & Directors' Information:- ANAND LIMITED [Active] CIN = U51101WB2010PLC148865

Company & Directors' Information:- ANAND (INDIA) PRIVATE LIMITED [Amalgamated] CIN = U74591DL1998PTC095751

Company & Directors' Information:- E R JOSEPH & CO PVT LTD [Strike Off] CIN = U28920WB1955PTC022404

Company & Directors' Information:- B-ANAND AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45203DL1988PTC032328

    OP (Crl.) No. 274 of 2018

    Decided On, 29 November 2018

    At, High Court of Kerala Ernakulam Bench

    By, THE HONORABLE JUSTICE: RAJA VIJAYARAGHAVAN V

    For Petitioner: C.S. Dias, Maria Elizabeth Wilson, P.K. Dhanya and N.K. Subramanian, Advocates And For Respondents: K. Kusumam and K. Kalesh, Advocates.



Judgment Text

1. The petitioners herein are the wife and minor daughter of the 1st respondent.

2. The petitioners approached the Family Court, Irinjalakuda and filed a petition under Section 125(1) of the Cr.P.C contending inter alia that the 1st respondent is an affluent person with sufficient means and that he has neglected and refused to maintain them. Along with the main petition, an application for interim maintenance was filed claiming maintenance at the rate of Rs. 50,000/- per month.

3. The 1st respondent entered appearance and filed an elaborate counter. He filed a memo undertaking to pay interim maintenance to the 2nd petitioner at the rate of Rs. 20,000/- per mensem. He also undertook to remit the school fees directly to the school. However, in Paragraph No. 3 of the memo, he has stated as follows:

"3. It is made clear that since the petitioner/wife is a qualified doctor having BDS degree and refuses to work and earn for herself, the respondent is not willing to provide maintenance to her."
4. The learned Family Court accepted the memo as such and refused to grant interim maintenance to the wife. The exact amount offered by the 1st respondent was granted to the child.

5. The learned counsel appearing for the petitioners would submit that the order passed by the court below is perverse. It is urged that no reasons have been assigned by the court below while refusing interim maintenance to the wife and while fixing a meager amount as maintenance for the minor child. According to the learned counsel, the Family Court has committed an egregious error in accepting the memo filed by the 1st respondent. The right of the wife and child to receive maintenance is indefeasible and the respondent/husband has no right to dictate terms, is the submission. The learned counsel has relied on the decisions of the Apex Court in Bhuwan Mohan Singh v. Meena and Others (AIR 2014 SC 2875) and Sunita Kachwaha and Others v. Anil Kachwaha (AIR 2015 SC 554) to hammer home his contentions.

6. The learned counsel appearing for the 1st respondent, on the other hand, submitted that the learned Family Court was clearly justified in refusing maintenance to the 1st petitioner, as it was evident that the wife was qualified and capable of earning for herself. It is further submitted that the wife had left the matrimonial home and has refused to live with the 1st respondent. She points out that the wife cannot insist that she would sit idle and expect the 1st respondent to shoulder her expenses in a petition filed under Section 125 of the Cr.P.C. The provision has been enacted to ameliorate the agony and financial suffering of a wife, who is not able to maintain herself and not to persons like the 1st petitioner, is the submission advanced. The learned counsel has referred to the decisions in Mamta Jaiswal v. Rajesh Jaiswal II [(2000) DMC 170], Santhosh Sharma and others v. State of Rajasthan and Another [2017 KHC 3635], Monu Sohngra v. Pink [2017 KHC 3706], Deepak Verma v. Rashmi Verma [2016 KHC 4001] and Santhi E. v. Vasudev H.K. [2005 KHC 5637] to substantiate her point.

7. I have considered the submissions advanced. Voluminous materials have been produced by either sides before this Court to substantiate their respective contentions. It is by now settled that the Family Court can pass interim maintenance orders pending the final disposal of a petition under Section 125 of the Cr.P.C. An elaborate enquiry is not contemplated at this stage. It appears from the order that the learned Family Court was persuaded by the memo filed by the husband and has refused maintenance to the wife on the sole ground that she is a qualified person and could maintain herself. No reasons have been stated by the Family Court other than making a reference to the memo filed by the 1st respondent. As held by the Apex Court in Sunitha (supra), even if the wife was earning some amount that may not be a reason to reject her application for maintenance outright. In a case of instant nature, the learned Family Court should have applied its mind carefully before rejecting her prayer for maintenance holding that she has the potential to maintain herself. As held by the Apex Court in a catena of decisions, the concept of sustenance does not necessarily mean to live the life in penury and roam around for basic maintenance. The wife is entitled in law to lead a life in the same manner as she would have lived in the house of her husband with respect and dignity. The husband is not entitled to contend that he is not prepared to pay any maintenance and the courts are not expected to accept the blatant refusal of the husband with folded hands. If the Family Court decides to deny interim maintenance to the wife or pay a lesser amount than claimed to the minor child, it can only be on legally permissible reasons and not on the strength of a memo filed by the husband.

8. Having considered all the relevant facts, I am of the considered view that the order passed by the Family Court cannot be sustained under law. The same is set aside. The Family Court is directed to pass fresh orders in the petition as

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expeditiously as possible, at any rate, within a period of one month from the date of production of a copy of this judgment. This original petition is disposed of.
O R







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