Physical Disability Immaterial If Husband Has Means To Maintain Wife: Kerala High Court

Justice G. Girish made the observation while dismissing a revision petition filed by a man challenging an order directing him to pay ₹10,000 per month as maintenance to his wife.

““it is worth to note that even as per the version of the petitioner, he had adopted the deceitful tactics of making a matrimonial advertisement for the ostensible purpose of getting a servant, and succeeded in contracting a marriage with the respondent with the full knowledge that he is incapable of performing his conjugal obligations to his wife. After spoiling the life of a lady by resorting to such a dubious method, the petitioner cannot evade from his responsibility to make payment of maintenance to the respondent.” Court observed.

The petitioner had married the respondent on August 1, 2015, in his second marriage, pursuant to a matrimonial advertisement published by him in a leading daily. The marriage was admittedly not consummated. According to the petitioner himself, he had suffered a paralytic stroke in 2012 and was incapacitated from having a physical relationship. He further claimed that the matrimonial advertisement had been made with the intention of finding a maid servant to look after him and his mother.

The marital relationship subsequently broke down, resulting in proceedings before the Family Court concerning maintenance, divorce and return of gold ornaments. The Family Court allowed the wife's divorce petition on the ground of cruelty, while rejecting her claim for return of gold ornaments and realisation of money. It nevertheless found that the husband had sufficient means to pay maintenance and directed him to pay ₹10,000 per month.

Challenging this order, the husband approached the High Court. The petitioner - husband argued that the maintenance order was unsustainable in view of his physical incapacity. He relied on medical records and a Medical Board certificate to contend that he was physically incapacitated due to a paralytic stroke. The certificate recorded a permanent locomotor disability of 70 per cent in relation to his whole body.

The High Court, however, noted that although the medical evidence disclosed the physical incapacity suffered by the petitioner, the Family Court had arrived at its finding on his ability to pay maintenance on the basis of the evidence regarding his financial resources.

“So also, the court below took into account the contention of the petitioner that he had been maintaining the respondent during the period when she was residing along with him, to arrive at a finding that the petitioner is capable of maintaining the respondent. It is upon the aforesaid premises that the court below concluded that the petitioner is having sufficient means to pay maintenance at the rate of Rs.10,000/- per month to the respondent.” Court noted.

The Court further observed that the Family Court had found that the husband possessed sufficient means to pay maintenance but was concealing his income. It had also found that the wife did not have sufficient means to maintain herself.

“The physical incapacity of the petitioner as disclosed by the medical records does not assume any relevance, since the finding of the court below about the capability of the petitioner to maintain his wife, is not on the basis of the concept of 'able bodied person'.” Court added.

The Court consequently found no reason to interfere with the Family Court's order directing payment of ₹10,000 per month as maintenance and dismissed the revision petition as devoid of merit.

Counsel for Revision Petitioner: K. Saneesh Kumar, V.B. Santhini

Counsel for Respondent: Ananthakrishnan A. Kartha, Anil D. Kartha, Suresh G, Sharath Eldo Philip, Sreekumar G, Ananthasankar A. Kartha