IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 RPFC.No. 327 of 2008() ---------------------- MC.54/2005 of FAMILY COURT, KOZHIKODE .................... (S): REVISION PETITIONERS/PETITIONERS ---------------------------------------------------- 1. REHNAS N., AGED 25 YEARS, D/O.ABDUL AZEEZ, RESIDING AT EDASSERIPARAMBIL, NORTH KINASSERI, P.O.POKKUNNU, VALAYANADU VILLAGE AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2. FATHIMATHUL HUDHA, AGED 4 YEARS, (MINOR), D/O.REHNAS, RESIDING AT EDASSERIPARAMBIL, NORTH KINASSERI, P.O.POKKUNNU, VALAYANADU VILLAGE AND DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): RESPONDENT ------------------------- V.C.P.LIYAKATH ALI, AGED 34 YEARS, S/O.MOIDEEN KOYA, VADIYILCHERIYAPURAKKAL, KADEEJA MANZIL, VADIYIL LANE, NAGARAM VILLAGE, KOZHIKODE. NOW RESIDING AT C/O.ABDUL KHADER, S/O.ABOOBACKER, BAITHUL HAMD, VALAYANAD AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F(C). No. 327 of 2008 ------------------------------------- Dated this the 3rd day of November, 2008 ORDER Petitioners are claimants in a petition under Section 125 Cr.P.C in whose favour a direction was issued to the respondent to pay maintenance to them @ Rs.1,250/- and Rs.500/- per mensem respectively. 1st claimant is the wife and the 2nd claimant is the minor daughter, aged 1 ½ years on the date of the claim. Marriage and paternity are not disputed. The respondent was employed abroad. He had returned to India about 1 1/2 years prior to the date on which he deposed before court. The claimants contended that the respondent has sufficient means and that they are unable to maintain themselves. The respondent was refusing and neglecting to maintain them. Maintenance was claimed at the rate of Rs.3,000/- and 2,000/- respectively. 2. The respondent entered appearance and resisted the claim. It was contended that the claimant was residing separately as she was unwilling to look after the mother of the respondent. No specific offer to maintain her on condition that R.P.F(C). No. 327 of 2008 2 she lives with him is seen raised. Parties went to trial on these contentions. The claimant/wife examined herself as PW1. She was cross examined and the respondent did not examine himself. The learned Judge of the Family Court, in these circumstances, came to the conclusion that the respondent is liable to pay maintenance to the claimants at the rates mentioned above. Accordingly the impugned order was passed. 3. The claimants assail the impugned order on the ground that the quantum of maintenance awarded by the learned Judge of the Family Court is perversely disproportionate to the evidence available about the needs of the claimants and the means of the respondent. In any view of the matter, in the light of the virtually unchallenged evidence about the quantum of income maintenance must have been awarded at the rates claimed, contends the learned counsel for the petitionerS. 4. The respondent has been served. There is no appearance for the respondent. Records have been called for. I have been taken through the oral evidence of the first claimant/wife. The chief affidavit as also the evidence in cross examination have been perused by me. The claimant/wife had asserted on oath that the petitioner is now employed as a driver R.P.F(C). No. 327 of 2008 3 and he was also an expert cook. He was getting a monthly income of Rs.20,000/-, it was asserted. Significantly these aspects have not been even challenged in the course of cross examination of PW1. The respondent had not chosen to appear and tender evidence also. Thus virtually the evidence of PW1 on the nature of employment and quantum of monthly income of the respondent remain unchallenged. In the light of that unchallenged evidence, I am satisfied that there is merit in the objections raised against the quantum fixed. In the facts and circumstances, I am satisfied that the quantum fixed is perversely low and disproportionate to the unchallenged evidence about the means of the respondent. I am satisfied that the claimants must be held to be entitled to an amount of Rs.1,750/- and Rs.1,250/- respectively per month. 5. There is a contention raised that the learned Judge of the Family Court has erred grossly in not directing payment of maintenance from the date of the petition. There is nothing to show that any interim maintenance has been paid. Under section 125 Cr.P.C the Family Court has a discretion to award payment of maintenance from the date of the order or the date of the petition. This discretion must be exercised judicially and R.P.F(C). No. 327 of 2008 4 judiciously by the judge of the Family Court. In a case where there is no contention even that any maintenance has been paid during the pendency of the proceedings, it would be perverse not to direct maintenance from the date of the petition. The learned Judge of the Family Court does not appear to have applied his mind to this aspect. Without any reason it is directed that payment of maintenance shall be from the date of the order. It would be abdication of jurisdiction not to consider whether maintenance must be ordered from the date of the petition or the date of the order. I am satisfied that maintenance must have been awarded from the date of the petition i.e. 3.2.2005. 6. In the result, this revision petition is allowed. The impugned order is modified. The amount of maintenance awarded to the first and second claimants is modified and the respondent is directed to pay an amount of Rs.1,750/- and Rs.1,250/- respectively per month to the claimants from the date of the petition i.e. 3.2.2005. (R.BASANT, JUDGE) rtr/-