IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 RPFC.No. 328 of 2009() ------------------------------- MC.235/2008 of Family Court, Kasargode. .................... REVN.PETITIONER/RESPONDENT. ----------------------------------------------- UNNIKRISHNAN.C, S/O.NARAYANAN NAIR, PAYADI, KATTIPOLI, NILESHWAR, KASARAGOD DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENT/PETITIONER. ------------------------------------- RADHAMANI.K, W/O.UNNIKRISHNAN.C., PO NATTAKKAL, VIA PARAPPA,KASARAGOD DISTRICT. ADV. SRI.SURESH KUMAR KODOTH THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J ----------------------------------- R.P.F.C. NO. 328 OF 2009 ------------------------------------------ Dated this the 18th day of March, 2010. J U D G M E N T This revision is preferred against the order of the Family Court, Kasargode in M.C.No.235/08. The wife was ordered to be paid maintenance at the rate of Rs.1,000/- from the date of order. It is against that decision the husband has come in revision. It is a case where the couples were earlier married and it was their second marriage. The wife is having a daughter in the first marriage and the husband having a son in the first marriage. They got married on 30.12.07 and the matrimonial relationship subsisted for few months. Thereafter, they are separated on account of incompatibility and that had lead to the filing of a case for maintenance. The learned young counsel for the revision petitioner strongly contends before me that under the provisions of the Criminal Procedure Code, it is equally important that the capacity of the husband to pay has also to be considered. There may not be any doubt that in a case u/S.125 of Criminal Procedure Code necessity of the wife and capacity of the husband to pay has to be considered to strike a balance in awarding the amount. Now here the contention of the husband is that he is a R.P.F.C. NO. 328 OF 2009 2 totally disabled person incapacitated to do any work and he cannot be saddled with much liability when he himself has to depend on somebody for his livelihood. One of the documents produced as Ext.B2, perused by me would reveal that this man had inter vertibral disc prolapse which had to be operated upon and further it revealed that it had affected the knee as well. It is also certified that he requires a prolong treatment and that he will not be able to do her work for and long time. Innumerable number of doctor certificates, prescriptions etc. are produced before the court but unfortunately medical evidence is not tendered which would have been a detrimental factor in deciding a case of this nature. I am not going into the details of this documents for the reasons that, I feel it is absolutely necessary to satisfy the conscience of the court regarding the capacity of the husband to pay. If a person is totally incapacitated and unable to do any work Sec.125 Cr.P.C. does not mandate such a person to pay maintenance even if the wife is unable to maintain herself. So the Family Court is directed to send the the husband who feels that he is totally incapacitated to undergo examination by a medical board consisting of experts and get a report be obtained to indicate what is the disability for the person and what is the loss of earning capacity and whether he would be able to do any work and if so the nature of the work. It has been time and again held R.P.F.C. NO. 328 OF 2009 3 by courts that when the loss of earning capacity is calculated, it has to be calculated not on the basis of the work which he was doing but it must be in the background of all the work he was capable of doing. The Full Bench decision reported in 2003 (2) KLT 462 under the Workmens Compensation Act in Vanajakshan v Joseph has held while assessing the disability, loss of earning capacity etc. all these materials will be taken together and a report be obtained after which the parties be permited to adduce evidence in support of their respective contentions then the matter to be disposed of in accordance with law. Since the matter has to go back to the Family Court the parties can be permitted to adduce documentary as well as oral evidence in support of their respective contentions including the medical evidence. I make it clear that the husband has to bear the expenses for attending before the medical board. The parties are directed to appear before the Family Court, Kasargode on 23.4.2010. Let the matter be disposed within 4 months from the date of first appearance for the parties. M.N. KRISHNAN, JUDGE. pm