The obligation of a husband under Section 125 CrPC to provide maintenance to his wife and children is essential, and refusal or failure to prove custody does not absolve this duty.

ORDER :

1. This revision petition is filed against the order dated 30.06.2022 in MC No.20/2019 of Family Court, Chavara. As per the above order, the Family Court granted maintenance to the respondents wife and children. Aggrieved by the same, this revision petition is filed.

2. Heard.

3. The marriage and paternity are not disputed. The petitioner took a contention before the Court that children are staying with him. The Court directed the petitioner to take out a commission; but the petitioner refused. Subsequently the 1^st respondent produced the children before the Court. It will be better to extract paragraphs 23 and 25 of the above judgment:

“23. Respondent has taken a contention that petitioners 2 to 4 are in his custody and is living with the respondent in this case and that he is meeting the entire expenses of the petitioners 2 to 4, children of 1^st petitioner and respondent in this case. According to the respondent, they are living in his house and occasionally they used to meet the 1^st petitioner and he has never obstructed petitioners 2 to 4 from meeting the 1^st petitioner. In short, respondent contended that he need not pay maintenance to petitioners 2 to 4.

24. When this contention was raised by the respondent on 05.01.21. He agreed to take out an advocate commissioner on that day to prove that petitioners 2 to 4 are in his custody. On 05.01.21 at 3.30 pm when the case was again taken up by my learned predecessor, the respondent has not filed application for appointment of advocate commissioner. Hence the case was posted to 06.01.21. On 06.01.21, 1^st petitioner and other petitioners were present. Petitioners 2 to 4 who are the children of 1^st petitioner and respondent were produced by the 1^st petitioner. My learned Predecessor has interacted with the children. It is recorded in the order sheet by my learned predecessor that all of them stated that they are residing with their mother and the second petitioner Ancil Ali H who is the eldest son stated that they are living with the mother continuously for the last 2 years and did not reside with the father after parents have separated.”

4. This shows the attitude of the petitioner. He is not coming before the Court with clean hands. As I mentioned earlier, the marriage and paternity are not disputed. The only contention of the petitioner is that he is ill because he has kidney stone. That is not a serious problem which can be cured through medication or through minor surgery. The petitioner is a skilled labourer who knows plumbing, electrical work, etc. The Family Court fixed only Rs.2,500/- to the wife as she admitted that she is getting an amount of Rs.5,000/- because she is working. As far as the children are concerned, only Rs.5,000/- each is granted. The same is only a reasonable amount. I see no reason to interfere with the same.

5. Section 125 Cr.P.C. is a benevolent provision to protect the rights of women who are abandoned by their husbands. In Bhuwan Mohan Singh v. Meena and Others, 2014 KHC 4455, the Apex Court held as follows:

3. Be it ingeminated that S.125 of the Code of Criminal Procedure (for short "the Code") was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the Court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obli