IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 RPFC.No. 111 of 2010() ---------------------- MC.897/2008 of FAMILY COURT, MALAPPURAM .................... PETITIONER/RESPONDENT: ------------------------------- CHNAGANATH BAKKER,AGD 35 YEARS, S.O.VIRUTHIYIL ABDU RAHIMAN,BADAR PALLI POST, AKALAD CHAVAKKAD TALUK. BY ADV. SRI.C.V.MANUVILSAN SRI.P.K.KHALEEMUDHEEN SRI.P.G.SURESH SMT.K.VIDYA SRI.M.R.VIBIN RESPONDENT(S): PETITIONER ------------------------- ACHIVEETTIL BASEENA,AGED 21 YEARS, D/O.KOLLARAYIL ABOOBACKER,KOLLARAYIL HOUSE, MANJERY AMSOM,VARICHAKAM.P.O,PONNANI TALUK, MALAPPURAM-676 551. ADV. SRI.T.K.SAIDALIKUTTY SRI.A.A.ZIYAD RAHMAN THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.111 OF 2010 ............................................. Dated this the 8th day of April, 2010. O R D E R This revision is preferred against the order of the Family Court, Malappuram in M.C.No.897/2008. The wife moved an application for maintenance against the husband and the court below granted maintenance of Rs.2,500/= per month payable from the date of petition. It is against that decision, the husband has come up in revision. 2. Heard the counsel for both sides. A perusal of the order would reveal that cases and counter cases are pending against both the parties. The wife has moved an application under Sections 498 A, 406 and 506 of IPC. She had earlier moved an application - M.C.No.494/2007 and it was not prosecuted. According to her, the husband is abroad and is having a monthly income of Rs.60,000/= and also Rs.30,000/= from the agricultural properties. She prays for Rs.3,000/= as monthly maintenance. 3. The husband on the other hand would contend that she is a mental patient. He was employed abroad but now : 2 : R.P.(F.C).No.111 OF 2010 he is employed as an auto rickshaw driver here with a wage of Rs.100/= per day. From the materials available, the rupture between the parties had deeply widened and therefore it may not be possible for them at this stage to unite. The wife is characterized as a mental patient but the court which had examined her does not find so. Therefore the wife is entitled to live separately. 4. Now on the quantum. The revision petitioner is now working in India. According to him, he is an auto rickshaw driver and is earning Rs.100/= per day. There is only oath against oath. Materials are not forthcoming from both sides to fix the income of the person. The purport of Section 125 of Cr.P.C is to grant maintenance to the wife taking into consideration the capacity of the husband to pay or in other words, the balance has to be struck in between necessity and capacity. So taking into consideration that aspect and the fact that he is an auto rickshaw driver by profession, I feel that justice can be met by directing him to pay at the rate of Rs.1,800/= per month as maintenance. 5. In the result, the revision is partly allowed and the : 3 : R.P.(F.C).No.111 OF 2010 order of maintenance is refixed at Rs.1,800/= per month from the date of petition payable by the husband. If any amount is paid or deposited, that shall be given credit to. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : R.P.(F.C).No.111 OF 2010