IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 RPFC.No. 87 of 2006() --------------------- MC.97/2004 of FAMILY COURT, THIRUVALLA .................... PETITIONER/CR.PETITIONER: --------------------------------------------- HARILAL, AGED 31 YEARS, S/O. N. SIVASANKARAN NAIR, AMBATTU VEEDU (SREEKRISHNA VILASOM), VALLICODE P.O., VALLICODE VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.PHILIP M.VARUGHESE RESPONDENT: PETITIONER: --------------------------------------------- T.D. PREETHA, AGED 24 YEARS, D/O. T.G. DIVAKARAN NAIR, THADISSERIL VEEDU, VELLIYARA P.O., AYROOR VILLAGE. ADV. SRI.BIJI MATHEW FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09/03/2010, ALONG WITH RPFC NO. 440 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN,J. =========================== R.P.(FC).Nos.87 0f 2006 & 440 OF 2009 =========================== Dated this the 9th day of March 2010. O R D E R R.P.(FC).No.87/2006 is filed against the order of the Family Court, Thiruvalla in M.C No.97/2004 whereby the husband was directed to pay maintenance at the rate of Rs.1,000/- to the wife. R.P(FC). No.440/2009 is filed against the order in M.C.No.61/2009 which was filed by the husband for cancellation of the maintenance as contemplated under Section 127 of the Cr.P.C. M.C No.61/2009 was dismissed on the ground that as a revision is preferred against the order in M.C.No. 97/2004 is pending before the High Court and as a stay is obtained it would not be proper for the Family Court to entertain conciliation application. Now both these matters are considered together. 2. The grievance of the husband in R.P(F C) No. 87/2006 is that the wife is not entitled to maintenance separately and that the quantum awarded is excessive. It is the case R.P.(FC).Nos.87 of 2006 & 440 OF 2009 2 of the wife that they lived together only for a period of 120 days after the marriage and during the said period there were both mental and physical cruelty and if it forced to live separately. It is the case of the wife that the husband and members of the family forced her to abort twice. Whereas the husband would contend the abortion was necessitated on account of some medical complication. So abortion is admitted. The learned Family Court judge had referred to three incident on 15,16,17 of March and had further stated the factum of cruelty mentioned on those days had not been challenged in cross examination. Further the father of the wife who is examined as PW2 would depose that he had been teleponically informed about cruelty meted out to the daughter and he had gone and fetched her back. Therefore evidence in this matter indicates that life in the matrimonial home was not congenial for living and therefore and she left the house. I hold that said finding does not call for any interference. 3. Now next question is regarding the quantum. So R.P.(FC).Nos.87 of 2006 & 440 OF 2009 3 far as the quantum is concerned the wife would contend that the husband is running a business whereas the husband would contend that business is run by his father. It is true that there are no sufficient materials to establish that the business is done by the husband. But the husband is a young man aged 31 years. When he is a person who is healthy and strong he has to maintain his wife. Considering the present wage set up and also escalation in the cost of living an order of maintenance at the rate of Rs.1,000/- per month will not in any way be termed as excessive. Therefore, I do not propose to interfere with the order passed by the Family Court in M.C. No.97/04. 4. Next question is regarding R.P.(FC) N0. 440/2009. Now since the revision against M.C.No. 97/2004 is disposed of there is no legal hurdle for the Family Court to consider the question regarding variations of the maintenance under Section 127 of the Cr.P.C. Therefore, that order is to be set aside and matter is to be remitted back to the Family Court for consideration of M.C No.61/2009 on merits. Since the R.P.(FC).Nos.87 of 2006 & 440 OF 2009 4 wife has not entered appearance in that case it is desirable that notice is issued to her before further proceeding in the matter. In the result, R.P.(FC) No.87/06 is dismissed. R.P.(FC) No.440/09 is allowed and order under challenge is set aside and the matter is remitted back to the Family Court with a direction to permit both parties to adduce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law . The petitioner in M.C.No. 61/2009 is directed to appear before the Family Court on 19.4.2010 and thereafter take notice to the wife for further proceedings in the matter. M.N.KRISHNAN,JUDGE. mns