IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 RPFC.No. 291 of 2007() ---------------------- MC.29/2005 of FAMILY COURT KOTTAYAM .................... PETITIONER/RESPONDENT: ----------------------------------------- THOMAS, S/O.THOMAS, THENADIKULATHIL HOUSE, EDANADU KARA, VALLICHIRA VILLAGE. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL RESPONDENT(S): PETITIONER & STATE: ---------------------------------------------------------- 1. ANIYAMMA THOMAS @ ANNA, THENADIKULATHIL HOUSE, EDANADU KARA, VALLICHIRA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR RITHWIK SRI.B.KRISHNA MANI FOR R.1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 3/12 /2009 , ALONG WITH RPFC NO. 326 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ====================== R.P.(F.C). No. 291 of 2007 IN R.P.(F.C).No.326 of 2007 ====================== Dated this the 3rd day of December, 2009. ORDER Both these revision petitioners are filed assailing the order in M.C. No. 29/2005, a petition filed under Section 125 of the Code of Criminal Procedure before the Family Court Kottayam. By the order impugned the lower court directed the respondent therein, who is the husband of the petitioner to pay monthly maintenance at the rate of Rs.1,000/-. Criminal R.P.F.C No.291/2007 was filed by the respondent husband before the trial court assailing the order granting maintenance. R.P.F.C No.326/2007 was filed by the petitioner assailing the inadequacy of the maintenance. Hereinafter, the parties are referred to as they are arrayed before the trial court. 2. The respondent married the petitioner on 13.5.1968. Two sons were born in the wedlock. The elder son is reported married and residing separate. Alleging that the respondent neglected to pay maintenance, in addition to the cruelty, the petitioner sought for an order directing the RP(FC). No. 291 of 2007 IN RP(FC).No.326 of 2007 2 respondent to pay monthly maintenance at the rate of Rs.10,000/-. It was alleged that the petitioner was not able to maintain herself. On the other hand, the respondent was owning 8 acre of rubber estate and had been getting an annual income of Rs. 6 lakhs. 3. The respondent admitted the status. The cruelty alleged was denied. It was further contended that the petitioner tied the hands and legs of the respondent and was admitted in a mental hospital alleging that he was insane and that by filing complaint before the police he escaped and that the petitioner had been possessing the properties of the respondent and had been taking income along with the children and there are civil suits pending between the parties. The allegation in the petition that the respondent was having 8 acres of property and had been getting Rs.6 lakhs as annual income was denied. The claim for maintenance at the rate of Rs, 10,000/-per month was also stated to be baseless and prayed for dismissal of the petition. 4. As part of the enquiry the petitioner was examined as PW1 and Exts. A1 to A8 were marked. The respondent was examined as CPW1 and Exts.B1 to B5 were marked. On appraisal of the evidence the lower court arrived a finding that the petitioner is entitled to separate maintenance and a sum of Rs. 1,000/- per month was awarded towards the maintenance. Now these revision petitions. RP(FC). No. 291 of 2007 IN RP(FC).No.326 of 2007 3 5. From the material disclosed in evidence it is revealed that there is little likelihood of parties joining together. They are at logger heads and fighting tooth and nail. Though it is contended by the respondent that the revision petitioner had been occupying the properties belonging to the respondent and taking income, there is no convincing evidence to that effect. There is also no material to conclude that the petitioner has got any independent source for her maintenance. In the above circumstances the petitioner is entitled to an order for separate maintenance. 6. Though the respondent denied of having 8 acres of estate, he had to admit in the witness box that he had been owning 5 acres of estate of which one acre is planted with pepper. Regarding the agricultural expenses and the net income, there is no reliable evidence. However, it would give good yield to provide maintenance to the petitioner. Though the learned counsel for the petitioner argued that the petitioner is in her sixties and suffering so many ailments, the evidence on record didn't show that the petitioner had been suffering from any ailment. Therefore, the minimum requirement would meet the ends of justice. Taking into account of the extent of property owned by the respondent, the value of the essential commodities, price index and the minimum requirement of the petitioner, I find that a sum of Rs. 3,000/- per month would be just and reasonable maintenance and that the respondent could easily make it out RP(FC). No. 291 of 2007 IN RP(FC).No.326 of 2007 4 of the estate. The order impugned requires such modification. In the result, R.P.F.C. No. 292/07 is dismissed and R.P.F.C. No.326/07 is allowed. While confirming the order to pay maintenance, the amount awarded by the lower court is enhanced to Rs.3,000/- from Rs.1,000/- with effect from 1.7.08. The respondent is permitted to pay the arrears in four monthly instalments. It is reiterated by the learned counsel for the respondent that the petitioner had been occupying the properties of the respondent in violation of the prohibitory order of the civil suit. In the events there is any change of circumstance, including exclusion of the respondent from his properties, the respondent is at liberty to move the trial court for a alteration under section 127 of Code of Criminal Procedure. If such a petition is filed, the trial court shall take note that the quantum determined by this order is on the presumption that the respondent has been taking income from his estate. P.S.GOPINATHAN, JUDGE. mns