IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 14^TH DAY OF SEPTEMBER 2022 / 23RD BHADRA, 1944 OP(CRL.) NO. 441 OF 2022 AGAINST THE ORDER IN MC 148/2021 OF FAMILY COURT, ERNAKULAM PETITIONER/RESPONDENT IN MC 148/2021:

EBIN GEOGE C.A AGED 34 YEARS, S/O.ALBY C.G, CHITTEPPALLY HOUSE, KUMBALANGHI, C.K.DHAMODHARAN ROAD, KUMBALANGHI.P.O, ERNAKULAM DISTRICT , PIN – 682007.

BY ADVS.

S.SAJU A.V.SAJAN ANJANADEVI.G RESPONDENTS/RESPONDENTS:

1 LEYA AUGUSTINE, AGED 26 YEARS, D/O.P.G.AUGUSTINE, 260-PADASSERY, KANNAMALY, ANDIKKADAVU.P.O, ERNAKULAM DISTRICT, PIN – 682008.

2 ALBERT WAYNE, AGED 2 YEARS, S/O.EBIN GEORGE REP-BY HIS MOTHER, LEYA AUGUSTINE AGED 26 YEARS, D/O. P.G.AUGUSTINE, 260-PADASSERY, KANNAMALY, ANDIKKADAVU.P.O, ERNAKULAM DISTRICT, PIN – 682008.

THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON

14.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

A.BADHARUDEEN, J.

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O.P.(Crl) No.441 of 2022 ------------------------------------

Dated this the 14th day of September, 2022

J U D G M E N T

This is an Original Petition filed under Article 227 of the Constitution of India challenging Ext.P7 order , viz., the order dated 18.05.2022 in M.P.No.369/2021 in M.C.No.148/2021 on the file of Family Court, Ernakulam. The petitioner is the sole respondent in the above matter. The respondents herein are the original petitioners in the above matter.

2. I would like to refer the parties in this Original Petition as to their status before the Family Court.

3. Short facts: The original petitioners, the wife and minor child, aged 1 year, of the respondent filed Miscellaneous Case under Section 125(1) of Cr.P.C claiming maintenance @ Rs.15,000/- each from the respondent. Along with the Miscellaneous Case, Miscellaneous Petition No.369/2021 was filed and sought for the said amount as interim maintenance.

4. Initially, the learned Family Court Judge passed an interim order granting interim maintenance. The same was assailed before this Court as per O.P(Crl).No.126/2022 on the ground that the documents produced by the respondent before the Family Court were not considered while granting interim maintenance @ Rs.5,000/-. Thereafter, this Court set aside the said interim order and the matter was again directed to be considered by the Family Court in accordance with law, after considering the facts sworn to in the affidavit and filed by the respondent.

5. It was thereafter, the impugned order was passed. In the impugned order, the learned Family Court Judge addressed the contentions raised by the petitioners as well as the respondent in tune with the decision reported in [2020 (4) ILR Kerala 579], Rajnesh v. Neha and after referring decisions of the Apex Court in [(2017) 15 SCC 801], Manish Jain v. Akanksha Jain; [(2019) 12 SCC 303], Reema Salkan v. Sumer Singh Salkan; [(2018) 12 SCC 1999], Shailaja & anr. v. Khobbanna; [(2008) 2 SCC 316], Chathurbhuj v. Seetha Bhai and [(2014) 16 SCC 715], Sunitha Khachuwah & Ors. v. Anil Khachuwah. In the above decision, the Apex Court held that the financial position of the parents of the applicant/wife would not be material while determining the quantum of maintenance. It was held further that plea of the husband that he did not possess any source of income ip so facto did not absolve him from his moral duty to maintain his wife, if he is able bodied and has educational qualifications.

6. Here, evidently, the respondent is an able bodied man, aged 30 years. In the affidavit filed by the 1^st petitioner wife, she had disclosed the income of the respondent from his business and landed properties. It is true that the respondent raised the contention before the Family Court that the wife has been working and has been getting Rs.12,000/- per month. Further it has been contended that the respondent was working as a Financial Analyst and his present salary would come to Rs.24,514/-, which was not sufficient to clear his liability. Further he