Sunday, 15 November 2015

Whether major daughter is entitled to get maintenance from her father till her Marriage?

  As regards the second petitioner is concerned, the

observation made by the court below that she did not pursue

her claim for maintenance after she became major appears to

be not correct, because, she filed the vakalath after she attained

majority and that was overlooked by the court below. Further,

it is settled law that as regards the female children are


concerned, they are entitled to get maintenance till their

marriage unless it is proved that she is having independent

income to maintain herself after she attained majority. No such

evidence was adduced in this case. She had pursued her claim

for maintenance by filing this revision also.     So, under the

circumstances, the finding of the court below that she did not

pursue her claim for maintenance and as such she is not entitled

to get maintenance is also not correct. So, the petitioners are

entitled to get the maintenance from the respondent and he is

liable to pay maintenance to them as well.
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                       THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

             WEDNESDAY, THE 7TH DAY OF JANUARY 2015

                                          R.P.(F.C.)No. 323 of 2014 ()
                                                
                                               

        1. SHEELA, 
Vs

            ALBERT HEMSON @ JAMES, A

Citation;2015(3) Crimes 697 Kerala 

      Petitioners in   M.C.No.334/2008      of  Family   Court,

Ernakulam are the revision petitioners herein. The application

was filed by the revision petitioners who are the wife and

daughter of the respondent claiming maintenance under

Section 125 of the Code of Criminal Procedure.

      2.    The case of the petitioners in the petition was that

they belong to Christian community and first petitioner married

the respondent on 03.01.1995 as per custom from Palayam

St.Joseph Cathedral Church, Thiruvananthapuram and in that

wedlock, the second petitioner was born on 16.10.1995. At

the time of marriage, she was given 65 sovereigns of gold

ornaments and Rs.5,00,000/- cash by her parents. At the time

of marriage, respondent was working in Gulf in a Kuwait

Company and he was working even now there. At the time of

marriage, respondent was not having a house of his own.

Petitioner was residing with the respondent, his brothers and

sisters in the family house of the respondent.         The gold


ornaments and cash received by the petitioner at the time of her

marriage were entrusted with the respondent as a trustee. Out

of the gold ornaments, 35 sovereigns of gold ornaments and an

amount of Rs.5,00,000/- were utilised by the respondent for

meeting the necessities of his brothers and sisters. After the

marriage, the respondent and his family members started

harassing the petitioner both physically and mentally. Within

one month from the date of marriage, she conceived and she

gave birth to the second petitioner on 16.10.1995.          She

delivered the child from her house.         After delivery, the

petitioners were residing in the tharavadu house of the

respondent. When the respondent came on leave from abroad,

the family members of the respondent raised so many

complaints against the first petitioner and thereafter, their

cruelty towards her increased. She was found fault for even

trivial matters. The younger brother of the respondent Mr.Jilson

came from Gulf after resigning his job. Thereafter, he started

sending money to the petitioner through his younger brother

and he used to give only meager amounts by way of

maintenance to the petitioner that too once in four months. She

was not even allowed to go to her family house by the members

of the respondent's family. The respondent was showing more


love and affection towards his family members than towards the

petitioners. He used to come drunk along with his own brother

and physically harassed the first petitioner.         There were

mediation talks at the instance of the brothers of the first

petitioner with the respondent and he and his family members

agreed that they would not harass her. It was also agreed that

by using the share of the respondent, a house could be

constructed for the respondent in the family property and

brothers of the first petitioner would meet the expenses for

construction of the building.    They spent Rs.6,00,000/- and

constructed a building in the plot given to the respondent. The

amount was entrusted to the brother of the respondent for

construction of the building. He utilised a portion of the amount

for buying a car for him. After completion of the house, they

started residing in the newly constructed building.      But, the

making of false complaints against the first petitioner continued.

They even threatened her to do away with her. On 03.12.2006

at about 10 'o' clock, the brother of the respondent assaulted

the first petitioner by kicking her on her body and manhandled

her by beating on several parts of her body. On the next day

when she woke up, it was found that she was lying inside a

room locked from outside. She was not even allowed to go to


hospital. Again, there was a compromise and even thereafter,

the ill treatment continued. So, she filed a complaint against

the younger brother of       respondent before the Judicial First

Class Magistrate Court, Ernakulam alleging offence under

Section 498A and Section 341 of Indian Penal Code and the

same was forwarded to the police under Section 156(3) of Code

of Criminal Procedure. Thereafter, she was denied maintenance.

The respondent is working in a company in Kuwait for the last

sixteen years. He was getting a monthly income of Rs.55,000/-

per month.        She is without any job and she is unable to

maintain herself and the second petitioner. Second petitioner is

studying in 8th Standard in a convent girls' High School,

Pachalam.         They require an amount of Rs.5,000/- and

Rs.4,000/- per month respectively for their maintenance. So,

they prayed for allowing the application.

       3.     Respondent filed objection contending as follows:

       He had admitted the marriage and paternity of the second

petitioner, but, denied the allegations of cruelty alleged against

him and his family members. He also denied that first petitioner

was given 65 sovereigns of gold ornaments and cash of

Rs.5,00,000/- at the time of marriage and a portion of the same

was misutilised by the respondent.        The first petitioner was


working in an orphanage at Bishop House, Thiruvananthapuram

at the time of marriage. He came to know about her through

his elder sister who is a nun.          His elder sister Bessy felt

sympathy on the poor condition of the first petitioner and

requested the respondent to give a life to her. So, he decided to

marry her under the impression that since she was working in

an orphanage, her character and behaviour would be good and

she would be a loyal wife. Her financial condition was pathetic

at the time of marriage.        They were residing in a hut at

Puthuvila at the time of marriage. The father of first petitioner

was having ownership over 21 cents of land and another 6 cents

of land.     He promised to assign 6 cents of land to the first

petitioner as her family share. But, he did not transfer the same

in favour of the first petitioner till his death. It was the church

authorities who took initiative for the marriage of the first

petitioner.       The allegation that the respondent was not

maintaining her is not correct. He used to send Rs.7,000/- per

month to the first petitioner towards her expenses. He provided

everything for the petitioners. The allegations that he used to

send only Rs.500/- occasionally and that too through his brother

is not correct. The allegations that she was ill treated by him

and his family members also is not correct. The allegation that


her family members helped by giving Rs.6,00,000/- for

construction of the house in the family property and the

allegation that his brother had misused a portion of the amount

and purchased a car etc., are not correct and hence denied. In

fact, all facilities were given to her in the new house and the

house was constructed with his funds. She was having illicit

connection with one Advocate by name Ajith Krishnan and she

was leading an adulterous life with him. The allegation that he

was getting a monthly income of Rs.55,000/- is not correct. He

was getting only a monthly income of Rs.25,000/- and used to

send money after minimizing his expenses in Gulf. In fact, the

respondent is not allowed to enter the house and he has been

thrown out of the house. He is living in hostels at the mercy of

others.     The allegation that his brother trespassed into the

house of the petitioner and assaulted her is not correct and it is

a cooked up story. The said Ajith Krishnan and another person

named Krishnan who are claimed to be relatives of the first

petitioner were the members of the ruling party and at their

influence, no cases were registered against the petitioner though

complaints were given and false cases were registered against

them. She used to go along with the said Ajith Krishnan and

she used to return home very late in the night. He used to visit


the house frequently at the time when she was alone in the

house. When he came to know about the illegal connection, he

advised her not to repeat the same and look after the child

properly. But, that was not heeded by the first petitioner and

she is continuing her adulterous life with the said Ajith Krishnan.

So, she is not entitled to get any maintenance.         He is now

residing in a men's hostel at Aluva paying a rent of Rs.3,000/-.

He is also suffering from several diseases including high blood

pressure with diabetes and cholesterol.         He is undergoing

treatment for Coronary Artery disease.        So, he is unable to

maintain the petitioners by providing independent and separate

maintenance. She is now trying to grab the money as claiming

maintenance for the second petitioner as well. So, he prayed for

dismissal of the application.

       4.     PWs 1 to 3 were examined on the side of the

petitioners and Ext.A1 was marked on her side. RWs 1 to 6

were examined on the side of the respondent and Ext.B1 series,

B2 to B6, B7 series, B8 series, B9 to B12, B13 series, B14 and

B15 and X1 and X2 were marked on his side.

       5.     After considering the evidence on record, court below

found that the second petitioner has become major and no claim

for maintenance had been filed by filing a separate vakalath for

R.P.(F.C.).No.323 of 2014    : 8  :

her and so, she is not entitled to get maintenance and first

petitioner was leading an adulterous life and as such, she is not

entitled to get maintenance and dismissed the application.

Aggrieved by the same, the present revision has been filed by

the revision petitioners - petitioners before the court below.

       6.     Heard both sides and perused the records.

       7.     The Counsel for the petitioners argued that the

evidence of RWs 1 to 6 is not sufficient to come to the

conclusion that the first revision petitioner is leading an

adulterous life so as to deny maintenance to her. RW1 had no

direct knowledge about any of the things about the alleged

adulterous life said to have been lead by PW1.         RW2 is the

brother of the respondent who was inimical terms with the first

petitioner as he used to assault her and she had filed a

complaint against him also and he is the person behind all these

things.     So, his evidence also cannot be relied on for the

purpose of proving the alleged adulterous life. RWs 3 and 4

were examined for the purpose of proving the account

statements Exts. X1 and X2 to show that he was sending money

to the petitioner. Though RW5 was examined to prove that first

petitioner is leading an adulterous life with Ajith Krishnan, she

did not support the case of the respondent.         RW6 had only

R.P.(F.C.).No.323 of 2014   : 9  :

stated that he used to see Ajith Krishnan coming to the house of

the first petitioner and he came to know about an incident in

which RW2 had stopped the car when she was travelling along

with Ajith Krishnan. He had also no direct knowledge about the

same.       So, his evidence is not sufficient to come to the

conclusion that she is having illicit connection leading to

adulterous life so as to deny maintenance. Further, in some of

the complaints filed against her, such an allegation has not been

made. So, under the circumstances, the evidence adduced is

not sufficient to come to the conclusion that she is leading an

adulterous life with Ajith Krishnan so as to deny maintenance to

her as found by the court below. The second petitioner after

attaining majority had filed vakalath. So, the observation made

by the court below that, after attaining majority, she did not

pursue her claim for maintenance is not correct.         There is

nothing on record to show that she is having independent

income to maintain herself. Being a female child, she is entitled

to get maintenance till her marriage or she is capable of

maintaining herself. The said Ajith Krishnan is none other than

her mother's sister's son and as requested by PW2, he was

assisting her and it was he who had filed the maintenance

application and also the complaint. The allegation of adulterous

R.P.(F.C.).No.323 of 2014     : 10 :

life is not correct and all these have been projected at the

instance of his brother RW2 and so, the finding of the court

below is not proper and they are entitled to get maintenance.

The allegation that he is residing in a hostel and he is without

any employment and suffering from several diseases etc., is not

correct.

       8.     On the other hand, the Counsel for the respondent

argued that the evidence of PW2 will go to show that the first

petitioner travelled in the car of Ajith Krishnan in which PW3

also travelled and the reasons stated was that they went in the

car for enquiring about the possibility of getting a scholarship for

the second petitioner and it was admitted by PW1 that she being

a daughter of an NRI, she is not eligible for scholarship.

Further, in the case of adultery, there will not be any direct

evidence available and court will have to consider the

circumstances as to whether the allegation of adultery has been

proved or not.           Further, that can be proved only by

preponderance of probabilities. So, the evidence adduced will

go to show that she is leading an immoral adulterous life with

the said Ajith Krishnan and as such, court below was perfectly

justified in denying maintenance to her. He is now without any

employment and suffering from several diseases and so, he is

R.P.(F.C.).No.323 of 2014     : 11 :

unable to pay any maintenance to them as well. According to

him, court below was perfectly justified in denying the

maintenance to the petitioners and rightly dismissed the

application.

       9.     It is also submitted that being a revisional court, this

court cannot impose its own views as the revision jurisdiction is

very limited and this court can only consider as to whether the

findings arrived at by the court below on the basis of the

evidence is also possible and unless it is found to be perverse,

this court cannot reverse the finding of the court below.

       10. It is an admitted fact that respondent married the

first petitioner as per Christian custom to which they belong and

they were living together as husband and wife in the tharavadu

house of the respondent. It is also an admitted fact that the

second petitioner was born to them in that wedlock. It is also

an admitted fact that, at the time when the marriage took place,

he was working in gulf and he was providing maintenance to the

petitioners.      It is also in a way admitted that, when the

allegations of immoral life with Ajith Krishnan was projected by

his brother RW2, the relationship strained. It is also in a way

admitted that a new house was constructed in the family

property of the respondent and the petitioners were residing in

R.P.(F.C.).No.323 of 2014       : 12 :

that house. The fact that Ajith Krishnan, a practicing lawyer

used to visit the first petitioner occasionally was admitted by

her. Her case was that, he is her mother's sister's son and since

in the absence of the respondent, she was being ill treated by

his brother and making her life miserable in the house.     When

she made the complaints, he used to come to help her to get

protection from the ill treatment of the family members of the

respondent.

       11. Section 125(4) of the Code of Criminal Procedure

says that no wife shall be entitled to receive an allowance of

maintenance        or    interim  maintenance and    expenses   of

proceedings as the case may be from her husband under this

Section, if she is living in adultery or if without any sufficient

reason she refuses to live with her husband or if they are living

separately by mutual consent. In this case, the allegation was

one of living in adultery with one Ajith Krishnan.

       12. In the decision reported in Pattayee Ammal Vs.

Manickam Gounder and another [1967 Cri.L.J. 900

(Vol.73, C.N.229)] equivalent to [AIR 1967 MADRAS 254 (V

54 C 81)], the Madras High Court          observed that, adultery,

from its nature, is a secret act. Direct evidence of an act of

adultery is extremely difficult. It is very rarely indeed that the

R.P.(F.C.).No.323 of 2014    : 13 :

parties are surprised in the direct act of adultery.        Direct

evidence, even when produced, the court will tend to look upon

it with disfavour, as it is highly improbable that any person can

be a witness to such acts, as such acts are generally performed

with at most secrecy. It is further observed in that decision that

taking comprehensive view of the case law as to standard of

proof necessary in matrimonial causes that the facts and

circumstances of the case would not certainly lead a reasonable

man to the conclusion that the appellant had been living in

adultery with the second respondent. Further, in paragraph 9 of

the judgment, it has been observed that, "is living in adultery"

to mean a continuous course of adulterous life as distinguished

from one or two lapses from virtue. Living in adultery is wider

than mere living as a concubine or as a kept mistress. The word

"is living" cannot mean "was living". It is true that it would not

be possible to lay down any hard and fast rule. Each case must

be decided upon its own facts.

       13. In the decision reported in Chandrakant Gangaram

Gawade Vs. Sulochana Chandrakant Gawade and others

[1997 CRI.L.J.520], it has been observed that mere stray or

single lapse is not sufficient to constitute living in adultery.

Proof of continuous course of adulterous conduct is necessary.

R.P.(F.C.).No.323 of 2014   : 14 :

The same view has been reiterated in the decision reported in

Baishnab        Charan    Jena  Vs.   Ritarani   Jena    [1993

CRI.L.J.238], where it has been observed that merely proving

one or more instances of lapses in character of wife is not

sufficient to absolve her husband from liability to pay

maintenance to her. Very allegation by husband and members

of his family castigating wife as a person living in adultery or

having extra marital relationship is insulting and humiliating

entitling her to live separately from her husband and to claim

maintenance from him.

       14. In the decision reported in Jagan Nath Vs. Mst.

Sarjoo [1971 CRI.L.J.158 (Vol.77, C.N.50)], it has been

observed that living in adultery means outright adulterous

conduct where wife lives in quasi permanent union with whom

she commits adultery.       In the decision reported in Smt.

Mehbubabi Nasir Shaikh Vs. Nasir Farid Shaikh and

another [1977 CRI.L.J.391], it has been held that courts are

not justified in suspecting chastity of woman merely because

husband casts aspersions on her chastity.       In the decision

reported in S.S.Manickam Vs. Arputha Bhavani Rajam

[1980 CRI.L.J.354], it has been observed that, while

considering the words provided in Section 125(4) of Code of

R.P.(F.C.).No.323 of 2014    : 15 :

Criminal Procedure 'is living in adultery' it would not take into its

fold stray instances of lapses from virtue, it would not also mean

that the wife should be living in adultery on the date of the

petition. The proper interpretation would be that there should

be proof of adulterous living shortly before or after the petition,

shortly being interpreted in a reasonable manner viewing it in

the light of the facts of the case. It is further observed in the

same decision that, when the husband challenges the claim for

maintenance of his wife, alleging that his wife is living in

adultery, the husband ought to begin his case and prove the

allegation of such adulterous life on the part of the wife by

letting in evidence of her continued adulterous conduct at or

about the time of the application and then the wife against

whom such a charge is made ought to be given an opportunity

to rebut such allegation.     In the same decision, it has been

observed that, the provisions do not apply to a divorced 'wife' in

the form of an Obiter. The same view has been reiterated in the

decision reported Satish Kumar Arora Vs. Smt. Varsha Arora

and another [1984 CRI.L.J.1012].

       15. In the decision reported in Mohandas Panicker Vs.

Dakshayani [2014 (1) KLT 397], the Division Bench of this

court has held that, in civil cases, preponderance of probabilities

R.P.(F.C.).No.323 of 2014      : 16 :

is the standard to be adopted to prove the case. No doubt,

matrimonial cases are civil proceedings and Court can act upon

preponderance of probabilities, especially in adultery cases,

since it is difficult to get direct evidence. Even in that case, the

Division Bench of this court has observed that, in case where the

evidence adduced on the side of the husband leads to the

irresistible conclusion that in all probabilities, the relationship

between the wife and the person with whom she is said to have

adulterous relationship is of permanent nature and lead to a

conclusion that they are living in adultery, then only court can

come to such a finding to grant the relief to the husband. So,

with this principles in mind, the case in hand has to be

considered.

       16. RW1 is the husband of the first petitioner and he had

no direct knowledge about the allegation of adultery or the illicit

relationship between PW1 - the first petitioner and the said

Ajith Krishnan. He is only relying on the hearsay knowledge of

instances given by his brother RW2 on this aspect.            Even

according to the evidence of RW2, he had only seen PW1 going

along with Ajith Krishnan in a car along with PW3 and at that

time he along with others obstructed the same and took some

photos and objected their going together. He had no case that

R.P.(F.C.).No.323 of 2014   : 17 :

he had seen them in any suspicious circumstances. It was also

brought out in evidence that the petitioner had filed a complaint

against him for assaulting her and he is not in good terms with

the first petitioner. So, his evidence is also not sufficient to

come to the conclusion that the relationship even admitted

between first petitioner and the said      Ajith Krishnan will be

sufficient to lead to a conclusion that they are living in adultery.

The evidence of RW6 is also not sufficient to come to such a

conclusion as he had no direct knowledge about the alleged

incident in which people had stopped the car in which PW1 was

travelling along with the said Ajith Krishnan on a particular day

and he had knowledge about that incident as spoken to by RW2

who is his friend. PW3 was examined on the side of the first

petitioner to prove the circumstances under which they

happened to travel together in the car with Ajith Krishnan. She

had stated that she along with PW1 went in the car of Ajith

Krishnan to get a stamp paper for the purpose of submitting an

application for scholarship for their children who were studying

in the same school. Except that incident, there is no concrete

evidence adduced on the side of the respondents to prove that

their relationship is in the nature of living in adultery. Even

assuming that they were travelling together in a car or they

R.P.(F.C.).No.323 of 2014   : 18 :

were meeting frequently alone is not sufficient to come to a

conclusion that they were living in adultery as contemplated

under Section 125(4) of the Code of Criminal Procedure to deny

maintenance to her.

       17. Further, court must be slow in questioning the

chastity of woman unless there is strong circumstance available

to come to such a conclusion.        Mere suspicion alone is not

sufficient to come to the conclusion that she is living in

adulterous life. Here even assuming that the entire allegations

were accepted, it will not lead to an inference that they were

living in adultery so as to give an impression that the alleged

adulterous conduct of first petitioner was of permanent nature

and they are leading an immoral life so as to bring their

relationship in the nature of an adultery a matrimonial offence

so as to deny maintenance to the first revision petitioner.

Further, the evidence of PW1 and PW2 will go to show that there

is some family relationship between PW1 and said Ajith Krishnan

and it was he who helped them in filing the complaint against

RW2 and for filing this application for maintenance etc. Further,

no steps taken by the respondent to dissolve the marriage with

PW1 on the ground of adultery as well.           So, under the

circumstances, court below was not justified in relying on the

R.P.(F.C.).No.323 of 2014   : 19 :

evidence of RWs 2 and 6 to come to the conclusion that she is

living in adultery and the adulterous life of PW1 with the said

Ajith Krishnan was proved by preponderance of probabilities so

as to deny her the maintenance under Section 125 of the Code

of Criminal Procedure. So, the finding of the court below on this

aspect is liable to be set aside as it is perverse and against the

decision of courts on this aspect and respondent is liable to pay

maintenance to her.

       18. There is no evidence to prove that the first petitioner

is having any employment or she is getting any independent

income to maintain herself and the child.        It was in a way

admitted that the respondent was working in gulf at the time of

marriage. Though he had produced documents to prove that he

is having some illness, there is no evidence to show that he is

completely incapable of doing any work and earn anything to

provide maintenance to his wife and child.

       19. As regards the second petitioner is concerned, the

observation made by the court below that she did not pursue

her claim for maintenance after she became major appears to

be not correct, because, she filed the vakalath after she attained

majority and that was overlooked by the court below. Further,

it is settled law that as regards the female children are


concerned, they are entitled to get maintenance till their

marriage unless it is proved that she is having independent

income to maintain herself after she attained majority. No such

evidence was adduced in this case. She had pursued her claim

for maintenance by filing this revision also.     So, under the

circumstances, the finding of the court below that she did not

pursue her claim for maintenance and as such she is not entitled

to get maintenance is also not correct. So, the petitioners are

entitled to get the maintenance from the respondent and he is

liable to pay maintenance to them as well.

       20. It is in a way admitted that he is not now working in

gulf. But, he had not adduced any evidence to prove the source

of his income for his livelihood also. It cannot be believed that

he is living at the mercy of his brothers and other family

members as claimed by him. It was brought out in evidence

that he was paying rent for the hostel where he is said to have

been residing now.        It was also in a way admitted that the

petitioners are residing in the house constructed in the family

property of the respondent and there is dispute regarding as to

who had spent the money for construction of the house.

Further, it is settled law that the maintenance must be provided

in such a way as to give a decent life for the wife and child and


to avoid vagrancy and destitution in their life.        It must be

reasonable and decent also and it should not be a pittance. So,

considering the status of the parties and also the present

condition of the respondent, this court feels that fixing an

amount of Rs.2,500/- to the first petitioner and Rs.2,000/- to

the second petitioner will be sufficient maintenance to meet

their requirements and they are entitled to get the amount from

the date of petition as well. So, the order of the court below

dismissing the application is set aside and the petition is allowed

as follows:

       i)     The finding of the court below that first petitioner is

not entitled to get maintenance as she is living in adultery with

one Ajith Krishnan is set aside and it is held that she is entitled

to get maintenance from the respondent and he is liable to pay

maintenance to her.

       ii)    The finding of the court below that since the second

petitioner has become major and after attaining majority, she

did not pursue for her claim for maintenance by filing a separate

vakalath is also not correct as she filed vakalath after attaining

majority and she filed the present revision along with her

mother pursuing her claim for maintenance and that finding is

set aside and she is also entitled to get maintenance from the


respondent.

       iii)    The respondent is directed to pay maintenance per

month at the rate of Rs.2,500/- to first petitioner and

Rs.2,000/- to the second petitioner from the date of petition.

Four months time is granted to the respondent to pay the

arrears of maintenance in four equal monthly installments.

       With the above directions and observation, the revision is

allowed in part and disposed of accordingly.




                                             Sd/-
                                   K.Ramakrishnan, Judge.




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