IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 22ND DAY OF AUGUST 2014/31ST SRAVANA, 1936 RPFC.No. 311 of 2014 () ------------------------ AGAINST THE ORDER IN MC 243/2012 of FAMILY COURT, KANNUR REVISION PETITIONER(S)/RESPONDENT: ---------------------------------------------- DIVAKARAN.K.M, AGED 48 YEARS S/O.K.M.GOVINDAN, KOYITHATTA MAMBATTA HOUSE PERUNTHATTIL, P.O.UMMANCHIRA, VIA.THALASSERY KANNUR DISTRICT-670649. BY ADVS.SRI.C.P.PEETHAMBARAN SMT.MINI.V.A. RESPONDENT(S)/PETITIONERS: ----------------------------------- 1. SHYLAJA.K.M, AGED 44 YEARS D/O.K.M.GOVINDAN, KAVULLA MEETHAL HOUSE, KODALLUR.P.O NANICHERI, PARASSINIKADAVU, KANNUR DISTRICT-670563. 2. DEEKSHID, S/O. DIVAKARAN K.M, AGED 9 YEARS (MINOR) REPRESENTED BY HIS GUARDIAN AND MOTHER 1ST RESPONDENT, SHYLAJA K.M, KAVULLA MEETHAL HOUSE, KODALLUR.P.O P.O.NANICHERI, PARASSINIKADAVU KANNUR DISTRICT-670563. R1 & R2 BY ADV. SRI.P.K.MOHAMED JAMEEL THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.UBAID, J. ~~~~~~~~~~ R.P (FC) No.311 of 2014 ~~~~~~~~~~~ Dated this the 22nd August, 2014 O R D E R
The revision petitioner herein is aggrieved by the maintenance order obtained by his wife and minor son from the Family Court, Kannur under Section 125 of Cr.P.C in M.C No.243 of 2012. He married the first respondent herein on 17.3.2002 and she has been residing separately since 2005. The child was aged 7 years on the date of claim, and now he must be aged 9 years. Alleging cruelty and desertion, the wife brought claim under Section 125 of Cr.P.C in 2012.
2. The revision petitioner entered appearance in the trial court and resisted the claim on the contention that his wife has no reason to live separately and claim maintenance, and that he does not have much income to make payment as claimed by his wife and son.
3. The trial court conducted enquiry in the proceedings and recorded evidence. The wife examined herself as PW1 and the husband examined himself as RW1. He also examined another witness on his side. Exts.B1 to R.P (FC) No.311 of 2014 2 B4 were marked on the side of the husband. On an appreciation of the evidence, the trial court found that the wife is entitled to get maintenance under Section 125 of Cr.P.C and that the husband has a probable monthly income of not less than 15,000/-. Accordingly, he was directed to pay maintenance to the wife at the rate of 3000/- per month, and to the child at the rate of 2000/- per month by order dated 3.12.2013 in M.C No.243 of 2012. The said order is under challenge in this revision brought under Section 19 (4) of the Family Courts Act.
4. On hearing both sides on admission, I find that the real grievance of the revision petitioner is regarding the quantum of maintenance awarded by the trial court, and that with some modification in the trial court order, this revision can be disposed of, without being admitted to files.
5. The wife examined as PW1 has given definite evidence substantiating her case of desertion. I find that she has some genuine grievance against her husband, and that it is really impossible for her to continue the matrimony. I find on facts that her refusal to join her R.P (FC) No.311 of 2014 3 husband in matrimony is justifiable and that she has reason to live separately. Accordingly, it is found that she is entitled to claim maintenance under Section 125 of Cr.P.C.
6. Now the question is whether the quantum of maintenance requires interference. There is nothing to show that the wife has any job or income of her own. Though the husband made such a contention that she has her own income, there is no evidence to prove such a case. The respondent is admittedly a carpenter. He also practically admitted that a carpenter would get 750/- per day. But his case is that he would not get job everyday in a month. Anyway, the trial court made a rough assessment of the probable income of the husband as 15,000/- per month. What is awarded is only 1/3rd of the probable income assessed. In the particular facts and circumstances, I find that some slight modification can be made in the amount awarded by the trial court. The revision petitioner will have his own personal expenses and he will have other liabilities in the family consisting his parents, brothers and sisters. The concern of the court must be that the amount awarded R.P (FC) No.311 of 2014 4 by the court must reach in the hands of the claimant. If a huge amount is awarded, the claimant may not get it promptly, and the person liable may think of other options, if he finds it difficult to make payment of the huge amount. So, I feel that 2500/- will do justice to the wife and 1500/- will do justice to the child in the present circumstances, of course, subject to periodic modification and enhancement under Section 127 of Cr.P.C as and when needs and necessities increase and circumstances change.
In the result, this revision petition is disposed of as follows, without being admitted to files.
(a) The amount of maintenance awarded by the trial court to the 1st respondent (wife) will stand modified and reduced to 2500/- per month from the date of petition as ordered by the trial court.
(b) The amount of maintenance awarded by the trial court to the 2nd respondent (child) will stand reduced to 1500/- per month payable from the date of petition as ordered by the trial court.
R.P (FC) No.311 of 2014 5 ) The amount of maintenance
modified in revision will be subject to periodic modification and enhancement under Section 127 of Cr.P.C, as and when needs and necessities increase and circumstances change.
(d) The revision petitioner is granted two months' time to make deposit of the entire maintenance arrear due till this date in the trial court, or to make payment directly, and obtain receipt, on failure of which, execution can proceed.
Sd/ P.UBAID JUDGE ma /True copy/ P.S to Judge