Express News Service By

KOCHI: The Kerala High Court has held that a physically challenged husband cannot be exempted from the statutory liability to maintain his wife and children.

Justice K Harilal issued the order while dismissing a petition filed by Rafeeq of Ernakulam, challenging an order of the Ernakulam Family Court. Summayya, wife of the petitioner, submitted that she and her son were legally entitled to get maintenance allowance. She has no job or any other sources of income, while the petitioner is doing business and earning Rs 30,000 per month. The Family Court had directed him to pay maintenance allowance of Rs 3,000 each to his wife and son. However, the petitioner denied the liability to pay maintenance allowance to them stating that he was suffering 60 per cent permanent disability and that he had no income. He also contended that the quantum of maintenance allowance fixed by the Family Court was excessive and disproportionate.

The court pointed out that the petitioner had suffered a physical ailment and was subjected to a surgery when he was studying in Class-X. The doctors diagnosed that he was suffering 60 per cent disability. The court observed that the factum of disability was not disputed, which was evident from the disability certificate.

At the time of the marriage, the petitioner was having the disability. After the marriage, the percentage of disability increased. “Since the disability was subsisting at the time of marriage itself, he was fully confident that he could maintain a family. Though the certificate has been produced to show that he is having 60 per cent disability, no document was produced to show that he had fully lost his earning capacity or to suggest that he was totally incapable to do any kind of work,” the court observed. It pointed out that it is common knowledge that physically challenged persons also can do work or do certain businesses to earn a livelihood. Hence, physically challenged husbands cannot be exempted from the statutory liability to maintain wife and children, under Section-125 of the CrPC, unless it is found that after marriage the husband has become totally incapable to do any kind of work. “No lenient view can be taken on him, particularly when the disability or handicap was subsisting at the time of marriage and birth of the child,” the court observed. The court made it clear that the husband was liable to pay maintenance allowance to his children in accordance with the living status, standard of life and day-to-day requirements of his wife and children.