IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.MC.No. 547 of 2011() ------------------------ AGAINST THE ORDER DATED 31/12/2010 IN MP 661/2010 IN MC.26/2010 of FAMILY COURT, ERNAKULAM .................... PETITIONER(S): --------------- JAYAPRAKASH, AGED 43 YEARS, S/O.LATE C.U.JOSEPH, CHIRUKANDATHIL HOUSE, MEENKUNNAM P.O., MUVATTUPUZHA. BY ADV. SRI.VIJAI MATHEWS RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. JESSY JOSEPH, AGED 41 YEARS, D/O.JOSEPH, (W/O.JAYAPRAKASH, ADVOCATE), BELIKUNNEL HOUSE, AVOLI P.O., MUVATTUPUZHA. 3. BIBIN C.J., AGED 8 YEARS, S/O.JESSY JOSEPH, -DO- 4. BIMI ROSE C.J., AGED 6 YEARS, D/O.JESSY JOSEPH, -DO- (3RD AND 4TH RESPONDENTS REPRESENTED BY THEIR MOTHER AND NEXT FRIEND 2ND RESPONDENT JESSY JOSEPH) PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.547 of 2011 -------------------------------------- Dated this the 21st day of February, 2011. ORDER This petition is filed by the respondent in M.C.No.26 of 2010 of Family Court, Ernakulam. In a proceeding under Section 36 of the Indian Divorce Act, the Presiding Officer of that Court has directed petitioner to provide interim maintenance to the wife and two children, totalling `.3,500/- per month. That order is under challenge on various grounds. Learned counsel submitted that petitioner is not able to raise that much amount as ordered by the court below, respondent No.2 is in the custody of the petitioner, there is an order to give custody of that child also to respondent No.1 which is being challenged and that in the circumstances petitioner ought not to have been directed to pay interim maintenance to the respondents. It is pointed out that respondent No.1 has been working abroad as a nurse for a long time and that she is capable of maintaining herself. Apprehension of petitioner is that case is coming up for evidence on 22.02.2011 and if petitioner does not pay arrears he is likely to be imprisoned. I have heard learned counsel. 2. It is not disputed that petitioner got himself enrolled as an Advocate before 2000 and presently is practising as a lawyer at Muvattupuzha though according to the petitioner as a junior lawyer. Petitioner is aged about 43 years Crl.MC No.547/2011 2 and is not shown to be incapable of earning on account of any physical infirmity and hence I must presume that he is capable of earning. Question whether contention of petitioner that respondent No.1 is having sufficient income to maintain herself is to be considered. Now I am concerned with the order for payment of interim maintenance. Maintenance awarded to respondent No.1 for a month is `.1,500/- which is just `.50/- a day and maintenance awarded to respondent Nos.2 and 3, children is `.1,000/- each per month. The children are aged 8 and 6 years, respectively. Respondent No.1 claimed maintenance for herself and children vide petition filed on 29.01.2010. According to her on 03.10.2010 petitioner forcibly took respondent No.2 from her custody. Though that is denied by the petitioner, it is seen that the Family Court has directed petitioner to return respondent No.2 to the custody of respondent No.1. 3. I am not inclined to think that the amount awarded is excessive or beyond paying capacity of petitioner so that at this stage interference is required. Incapacity if any of the petitioner to raise funds can be proved in evidence. I do not find reason to interfere. However having regard to the circumstances stated by petitioner, he is granted 15 days time from this day to deposit in the court below entire arrears due as on this day and coercive steps against him shall stand in abeyance for the said period. Crl.MC No.547/2011 3 With the above direction and directing the Family Court, Ernakulam to dispose of the claim of respondents for maintenance untrammelled by any observation contained herein, this petition is closed. THOMAS P.JOSEPH, Judge. cks