IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 RPFC.No. 86 of 2003() --------------------- MC.310/2001 OF FAMILY COURT, MANJERI .................... REVISION PETITIONER: ---------------------------------------- E. AYISA, D/O. POCKER, EDAYARAKKAL, PULPARAMBIL HOUSE, P.O. PALLIKKAL, ERANAD TALUK, PALLIKKAL AMSOM, DESOM. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT(S): --------------- T. ABDUL NAZER, AGED 35 YEARS, S/O. MUHAMMED, THACHOLI, THOTTUMPADAM HOUSE, FEROKE PETTA, P.O. FEROKE. ADV. SRI.MANJERI SUNDERRAJ FOR R SRI.B.PREMNATH (E) FOR R SRI.MANJERI SUBIN SUNDER RAJ FOR R SRI.HARISH R. MENON FOR R SRI.K.T.SHYAMKUMAR FOR R THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04/02/2009, ALONG WITH RPFC NO. 96 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.Nos.86 & 96 of 2003 ---------------------------------------- Dated this the 4th day of February 2009 O R D E R These R.P.F.Cs are filed by the rival contestants in a claim for maintenance under Section 125 Cr.P.C. By the impugned common order, the learned Judge of the Family Court had turned down the prayer for maintenance of the claimant/wife and had directed payment of maintenance to the children at the rate of Rs.400/- per mensum. The claimant/wife has preferred R.P.F.C.No.86/2003 to assail the order in so far as it rejects her claim for maintenance and the counter petitioner/husband/father has preferred R.P.F.C No.96/2003 which directs payment of maintenance to the children at the rate of Rs.400/- per mensum each. The learned Judge of the Family Court had placed reliance on the decree for restitution of conjugal rights passed by the Family Court in O.P.No.292/2001 under which the wife was directed to resume co-habitation with the husband. It is submitted at all hands that the said decree was challenged before this court and by judgment dated 25/11/2008 in Mat.A.No.78/2003, the Division Bench of this court had set aside the said decree holding that “it cannot be said that there was no justifiable or reasonable cause for the wife to live apart”. 2. I shall first deal with the challenge raised by the counter petitioner/father/husband in R.P.F.C.No.96/03. Marriage is R.P.F.C.No.86/03 2 admitted. Paternity is also admitted. Liability to maintain the children cannot be disputed. The petitioner in R.P.F.C No.96/03 was admittedly employed abroad earlier. In his counter statement, he asserted that he has returned to his native place as the salary which he was receiving abroad was too meager. It was contended that he was employed as coolie now; but in the witness box, he asserted that there was no employment whatsoever. He was confronted with the earlier statement in the counter statement. He denied such statement in the counter statement filed by him. Less said about the contention that the quantum of maintenance awarded is excessive, in these circumstances, the better. I am satisfied that in any view of the matter, the direction to pay the meager amount of Rs.400/- per mensum to the two minor children does not, at any rate, warrant interference. If the same suffers from any defect, it is only that the quantum awarded is too meager. However, that direction is not seen challenged. I need only mention that the said quantum must be deemed to have been fixed on the basis of the circumstances available on the date of the petition which was filed in 2001. 3. Coming to the challenge in R.P.F.C No.86/03, in the light of the judgment of the Division Bench that the wife had sufficient R.P.F.C.No.86/03 3 and justifiable reason to live separately, the impugned order in which the rejection is founded on the passing of such a decree of restitution of conjugal rights has definitely got to be set aside. In the light of the subsequent judgment of the Division Bench, separate residence of the wife must be held to be for valid reasons. The wife is hence entitled to claim maintenance. Coming to the quantum of maintenance to be awarded to the wife, I do note that the quantum claimed is only for Rs.500/- per mensum. I have no hesitation to agree that even reckoning the husband as just an able bodied person, the claim of the wife must be held to be absolutely reasonable and modest. I am satisfied that maintenance can be awarded as claimed from the date of the petition. 4. In the result, a) R.P.F.C.No.96/03 is dismissed. b) R.P.F.C.No.86/03 is allowed. 5. The rejection of the claim for maintenance of the claimant/wife is set aside and the counter petitioner/husband is directed to pay maintenance at the rate of Rs.500/- per mensum from the date of the petition. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge R.P.F.C.No.86/03 4 R.P.F.C.No.86/03 5 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008