Friday, December 1, 2023

Kerala High Court flays attempts by qualified men showing less salary to avoid maintenance to wife/children

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The High Court of Kerala has come down heavily on qualified persons showing less income before the court, so as to avoid paying maintenance to wife and children.

The Single-Judge Bench of Justice A. Badharudeen observed on Monday that the clever attempts made by qualified persons to establish less income by producing salary certificates issued from private entrepreneurs, without opportunity to the other side to cross-examine the author of the document to test its genesis, shall not be the sole basis for considering the income of the husband/respondent in a maintenance petition. 

Noting that such certificates alone shall not be decisive in determining the income also, the High Court said that the courts shall consider the entire evidence, professional or other qualifications, along with the physical condition and all other attenuating circumstances of the husband/respondent, while quantifying the maintenance allowance.

The High Court made these observations while hearing a revision petition filed by an Automobile Mechanic under Section 19(4) of the Family Court Act read with Section 397 and 401 of Cr.P.C against the order of a Family Court that granted maintenance to his wife and minor child (respondents) at the rate of Rs 5,000 and Rs 4,000, respectively. 

The respondents had claimed that the revision petitioner was an Automobile Mechanic, who had been earning Rs 50,000 per month and also owned some properties.

They had sought maintenance at the rate of Rs 10,000 and Rs 4,000, respectively. However, the Family Court fixed the maintenance at Rs 9,000 per month.

The claim made by the wife was disputed by the husband, who claimed that he was only assisting his uncle in his business of Ayurvedic herbs and getting only Rs 8,000 per month.  

Appearing for the revision petitioner, Advocate T.N. Manoj argued that his client had produced the salary certificate, showing his monthly income to the tune of Rs 12,000 before the Family Court, but the Court failed to take note of that aspect while fixing the quantum of maintenance as Rs 9,000 per month.

He also relied upon the Apex Court decision in Akanksha Jain vs Manish Jain to contend that the quantum of maintenance shall be reasonable amount after taking into consideration the income of the spouses and the needs of the claimants having regard to the status of the parties, the family background, the standard of living to which the claimant has been accustomed, legal and other obligations of the person liable to make the payment and other relevant circumstances.

On the other hand, it was submitted by Advocate Siraj Karoly on behalf of the respondent that the revision petitioner had produced a salary certificate before the Family Court during November, 2019 showing his salary to the tune of Rs 16,000 and during evidence, he produced another salary certificate showing his income at Rs 12,000. 

Karoly argued that a ‘physically able-bodied person’ was legally and morally bound to maintain his wife and children and the obligation was even more, when he was professionally qualified. 

The Advocate pointed out that merely by producing a salary certificate issued by a private concern, without examining the authors and proving its contents by subjecting themselves to cross examination, the said salary certificates could not be sufficient to hold the income of the revision petitioner as had been shown in the certificates. 

He said the benevolent nature of Section 125 Cr.P.C. would also point that the attempts by the revision petitioner to establish less income, based on salary certificates issued by private concerns ought to be deprecated. 

The revision petitioner was professionally qualified, holding a Mechanical Engineering Diploma, added Karoly.

The High Court observed that the amount of maintenance fixed for the wife should be such that she can live in reasonable comfort, considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case, although not excessive or extortionate. 

It further noted that merely because the wife is earning money, it could not be a ground to reject the claim for maintenance.

Stating that the Family Court arrived at the decision after evaluating the materials available and after finding that the respondents did not have any means of maintenance, the High Court ruled that the said amount could not be held as on higher side in any way.

The Bench directed the revision petitioner to clear the entire arrears from the date of petition till that of the order, within a period of one month. 

It granted liberty to the respondents that if the revision petitioner failed to abide by the Court orders, the respondents were free to file a proper application before the Family Court to execute the sentence, in accordance with law.

(Case title: Amaldev vs Preeja & Anr)

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