Kiran Raj

The Kerala High Court has enhanced the monthly maintenance granted to a wife and her two children, revising the order of the Family Court, Tirur. The court directed the respondent, the husband, to pay ₹8,000 to the wife and ₹3,000 each to the two children, replacing the earlier order which had awarded ₹4,000 to the wife and ₹1,500 to each child. The revision petition was allowed on grounds of insufficient evidence to support the respondent’s claims of reduced income and the obligations of an able-bodied husband under the law.

The petitioners, a wife and her two children, filed a revision petition challenging the order passed by the Family Court, Tirur, on August 25, 2022, in a case filed under Section 125 of the Code of Criminal Procedure (Cr.P.C.). The petitioners initially sought monthly maintenance of ₹10,000 for the wife and ₹8,000 and ₹6,000 for the two children, respectively. The Family Court, after evaluating the evidence, had granted maintenance of ₹4,000 to the wife and ₹1,500 to each child. Dissatisfied with the quantum, the petitioners approached the Kerala High Court for enhancement of the maintenance amount.

The respondent, the husband, did not dispute the marital relationship or the paternity of the children. However, he contested the quantum of maintenance on the grounds that his income was insufficient to meet the claimed amounts. The petitioners asserted that the respondent was employed abroad and earning more than ₹1,00,000 per month, along with ₹25,000 from landed property. In contrast, the respondent argued that he had returned from abroad, was working in a bakery in Madras, and earning ₹8,000 per month. He also claimed to be suffering from ailments and submitted that he had to support his second wife.

The court recorded that the respondent did not produce any evidence to substantiate his claims of reduced income or his employment status. The judgment noted: “The respondent has admitted that he was employed at Gulf but claimed to have returned to India and is now working in a bakery. However, no document or evidence has been submitted to prove his current income or employment.” The court further stated: “An able-bodied husband is presumed to be capable of earning sufficiently to maintain his wife and children. The onus lies on the husband to establish, with necessary material, that he is unable to fulfill his legal obligations for reasons beyond his control.”

The court referred to the Supreme Court's decision in Rajnesh v. Neha & Another (2021) 2 SCC 324, which allows the drawing of an adverse inference against a party who fails to disclose their income or provide supporting evidence. Applying this principle, the High Court held that the respondent’s lack of evidence regarding his income justified an adverse inference in favor of the petitioners.

The respondent also argued that the wife was not entitled to maintenance as she had left the marital home without sufficient cause. Additionally, he contended that his obligation to support his second wife placed further financial constraints on him. In addressing this contention, the court observed: “The Muslim Personal Law permits a second marriage during the subsistence of the first in exceptional circumstances, but the husband is bound to treat both wives equally and equitably.” Citing Badruddin v. Aisha Begum (1957 All LJ 300), the court clarified that the husband's obligation to maintain his second wife does not absolve him of his statutory duty to provide for the first wife and children under Section 125 Cr.P.C.

In its order, the court noted: “Considering the entire facts and circumstances of the case, the means of the respondent, and the requirements of the petitioners, the monthly maintenance granted by the Family Court is too low.” The court revised the maintenance to ₹8,000 for the wife and ₹3,000 for each child, reasoning that the earlier amounts were insufficient to meet their needs.

The High Court also addressed the respondent’s argument regarding his ailments, stating that no evidence was produced to support his claims of illness affecting his earning capacity. The judgment held: “Since the respondent has failed to produce any material to prove his present employment and income, an adverse inference has to be drawn against him.”

The petition was allowed, and the High Court directed the respondent to comply with the revised maintenance order promptly.

Case Title: Haseena & Ors. v. Suhaib

Case Number: RP(FC) No. 334 of 2022

Bench: Justice Dr. Kauser Edappagath

[Read/Download order]