A divorced wife is entitled to maintenance under Section 125 of the Code, emphasizing the husband's duty to support his family despite claims of unemployment or illness.

ORDER :

C.S.Dias, J.

The revision petition is filed questioning the legality and correctness of the order in M.C.No.91/2016 of the Family Court Vatakara, ordering the revision petitioner to pay monthly maintenance allowance @ Rs.4,000/- each to the respondents - his divorced wife and two children - from the date of order. The revision petitioner was the respondent and the respondents were the petitioners before the Family Court.

Brief facts

2. The respondents had filed the application under Section 125 of the Code of Criminal Procedure ('Code', for brevity) against the revision petitioner seeking monthly maintenance allowance. It was the case of the respondents that the 1st respondent is the divorced wife of the revision petitioner and the respondents 2 and 3 are the children born in their wedlock. Due to the matrimonial cruelty meted out on the 1st respondent by the revision petitioner, the respondents had to flee the matrimonial home and seek shelter in the paternal home of the 1st respondent. The revision petitioner was employed abroad in a supermarket as a Salesman and was earning a monthly income equivalent to Rs.50,000/-. Despite having sufficient means, the revision petitioner wilfully refused to maintain the respondents. Hence, the application.

3. The revision petitioner had filed a written objection denying the allegations in the application. He contended that he had divorced the 1st respondent and she had filed M.C.No.22/2016 before the Judicial First Class Magistrate Court, Koyilandy under Section 3 of the Muslim Women's (Protection of Rights) on Divorce Act (in short, 'Act'). Therefore, the instant application filed by the 1st respondent was not maintainable in law. In addition to the above applications, the 1st respondent had also filed M.C.No.6/2016 under section 12 of the Protection of Women From Domestic Violence Act and an interim order was passed against the revision petitioner directing him to pay interim maintenance @ Rs.6,000/- per month. Hence, the present application is unsustainable in law because there cannot be multiple claims on the same cause of action. The revision petitioner is a chronic diabetic patient and is depending on his relatives for his sustenance. The respondents' sole intention is to harass the revision petitioner. It is only because the 1st respondent had refused to look after the revision petitioner's mother, he was compelled to severe the marital relationship. Hence, the application may be dismissed.

4. The 1st respondent was examined as PW1 and Exts.A1 and A2 were marked in evidence through her. The revision petitioner was examined as RW1 and Exts.B1 to B3 series were marked through him.

5. The Family Court, after analysing the pleadings and materials on record, by the impugned order, partly allowed the application by directing the revision petitioner to pay monthly maintenance allowance to the respondents @ Rs.4,000/- each.

6. Confronted by the said order; the revision petition is filed.

7. Heard; Sri.Anoop P.V., the learned Counsel appearing for the revision petitioner and Sri.Zubair Pulikool, the learned Counsel appearing for the respondents.

8. Is there any illegality, impropriety or irregularity in the impugned order ?

9. The revision petitioner admits that he was married to the 1st respondent and later divorced her. He also admits that respondents 2 and 3 are the children born in his wedlock with the 1st respondent.

10. The respondents' case was that although the revision petitioner has sufficient means, he has wilfully refused to maintain them. The respondents have no means to maintain themselves. Hence, the application.

11. The revision petitioner's defence was that since the 1st respondent has filed MC No.22/2016 under Section 3 of the Act and section 12 of the Protection of Women From Domestic Violence Act, the respondents cannot simultaneously prosecute the application under Section 125 of the Code. Moreover, the revision petitioner is unemployed and sick, and is depending on his rela