IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 RPFC.No. 182 of 2004(E) -------------------------- MC.30/2003 OF FAMILY COURT, MANJERI .................... REVISION PETITIONERS/PETITIONERS: ----------------------------------------------------- 1. V.JUBAIRIYA, D/O. LATE MUHAMMED KUTTY, AGED 19 YEARS, R/O. VALLIL HOUSE, KATTUPPARA, P.O. CHELAKKAD, PULAMANTHOL AMSOM, CHELAKKAD DESOM MALAPPURAM DISTRICT. 2. NAJIYA THASNIYYA, AGED 74 YEARS(MINOR), D/O.V.JUBAIRIYA (MINOR PETITIONER REPRESENTED BY MOTHER/GUARDIAN FIRST PETITIONER). BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): RESPONDENT: ------------------------------------ SHAMSUDHEEN, AGED 26 YEARS, S/O. CHERAKKI MOIDEEN ABDUL KHADER,CHERAKKI HOUSE, IRINGAPRAM AMSOM, PUTHAMPALLI DESOM (RESIDING AT KOTTAPPADI, P.O. KOTTAPPADI, CHAVAKKAD TALUK). ADV. SRI. JAMALUDHEEN & ADV. SMT.LATHA PRABHAKARAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.P(F.C.) NO. 182 OF 2004 = = = = = = = = = = = = = = = Dated this the 18th day of February, 2009. O R D E R This revision is preferred by the defeated wife in getting maintenance from the husband in M.C.30/03. A 19 year old lady had approached this Court to get maintenance from a 26 year old husband who in their wedlock had a 17 day old baby. These factors itself would show the unfortunate circumstances in which the parties are placed. The wife would contend that the marriage had taken place on 12.1.02 and they lived happily for a period of two months and thereafter bickering started, the husband ill-treated her deprived of her gold and money and driven her out of the house and did not bother thereafter to look after her and even did not come to the hospital when she had given birth to a child and therefore on account of the cruelty she was living separately and therefore she had claimed maintenance for her and the newly born child. R.P(F.C.) NO. 182 OF 2004 -:2:- 2. On the other hand respondent would contend that they were living happily after the marriage and on 10.4.2002 she was taken to her house and when he went to her house for calling her back on 14.4.2002 since her brother has taken some of her ornaments it was stated that she will be sent after the ornaments are returned. There was separation and union and ultimately she gave birth to a child and he was in the hospital. Even during the pregnancy he had maintained the wife and her conduct in not coming back to the husband is without reasonable cause and that she did not even come and join him in spite of notice to join him. In the Family Court PW1 and RW1 were examined. Exts.P1 to P5 series were marked. The trial court found that the wife had not succeeded in proving her separate residence with reasonable cause and therefore refused to grant her maintenance but awarded a sum of Rs.5,000/- to the minor child. It is against that decision the wife has come up in revision. 3. I heard the learned counsel for the revision petitioner as well as the respondent in detail and also R.P(F.C.) NO. 182 OF 2004 -:3:- perused the records and judgment rendered by the Family Court. The allegation of the wife is that cruelty meted out by her during her stay in the matrimonial home and thereafter. Repeating the word 'cruelty' in so many places will not amount to substitution for proof and one is expected to give some cogent reasons or instance where one can find out whether such things had happened or not. I am conscious of the fact that when a wife is beaten by the husband there will not be anybody to witness the same. Technical approach to cruelty may not be correct in maintenance cases. But it is the conduct of the parties that has to be weighed and reliability of the evidence whether it is intrinsic or not can be found out from the total materials that is made available before the Court. The husband has got a definite case that the wife was having a love affair with one Shanavas even prior to the marriage and at some point of time she had revealed it to the husband. The evidence tendered in this case would reveal that there had been bickering between the two and due to the intervention of so many persons the wife R.P(F.C.) NO. 182 OF 2004 -:4:- had came back and stayed with the husband. The stay has been short and everything has ended even before they celebrated the first wedding anniversary. The marriage took place on 12.1.2002 and she had given birth to a child from the hospital on 3.11.2002. It is alleged that the husband did not bother to come to the hospital at all whereas documents are produced here to show that when she has to undergo a ceaserian operation it was the husband who had signed the consent letter as guardian of the wife which would cut at the root of the fact that husband had never visited the hospital. Unless the husband has concern for the wife and if there had been so much of cruelty as suggested by the petitioner one cannot expect him to be there on the hospital at that point of time. It can also be seen that the husband had sent many money orders to the wife even prior to the admission of her in the hospital. When the act of cruelty is alleged and it is denied some materials must be produced before the authority or the Court to appreciate the same. The mother of the petitioner is alive, her brother is alive, the persons who R.P(F.C.) NO. 182 OF 2004 -:5:- are said to have been intervened are alive but none of them are examined to show or to point out the act of alleged cruelty shown by the husband to the wife. The maintenance case was filed only after receipt of notice from the husband directing her to join the matrimonial home. If there had been so much of cruelty exerted by the husband on the wife one cannot expect the husband to be present in the hospital at the time of delivery. So as correctly observed by the Court below the evidence of PW1 is highly exaggerated and it lacks credibility. Normally when one analyzes the evidence of an illiterate or rustic witness allowance will be given for the reason one may not be able to precisely say what it is. But here the petition is filed with wild allegations without basis and therefore the trial court found it very difficult to appreciate the evidence in her favour and therefore had taken into consideration the preponderance of probabilities of the case by weighing the evidence of petitioner and the respondent and came to a conclusion regarding the absence of a valid reason for living separately. As a revisional Court R.P(F.C.) NO. 182 OF 2004 -:6:- this court has to examine to find out whether there is patent illegality, irregularity or perversity in appreciating the matter. I find from the well considered judgment of the Family Court Judge that she had taken into consideration all the aspects to arrive at a proper decision. Therefore I do not propose to interfere with the said finding on fact rendered by the learned Judge. So far as the child is concerned the Court has ordered maintenance to her. So that also does not call for any interference. Therefore R.P.(F.C) lacks merit and it is dismissed without any order as to costs. M.N. KRISHNAN, JUDGE. ul/-