IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 RPFC.No. 255 of 2009() ---------------------- MC.238/2007 OF THE FAMILY COURT, PALAKKAD, DATED 28/02/2009. .................... REVISION PETITIONER/RESPONDENT ------------------------------------------ SALEEM,S/O.MUHAMMED,KELATHUMPARAMBIL, PACHUR,DESAMANGALAM,TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENTS: PETITIONERS AND STATE ------------------------------------ 1. SHAMEERA,AGED 27 YEARS,D/O.ENU,POOLATH HOUSE,THIRUMITTAKKODE VILLAGE,OTTAPPALAM TALUK. 2. SHABILA JASMINE,D/O.SHAMEERA,MINOR, 7 YEARS,REPRESENTED BY NEXT FRIEND AND GUARDIAN FIRST RESPONDENT SHAMEERA. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR : C.S.HRITHWIK THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.P.(F.C).No.255 of 2009 --------------------------------------- Dated this 13th day of July 2009 ORDER This revision arises from the order passed by the Family Court, Palakkad in M.C.No.238 of 2007 awarding maintenance to respondent Nos.1 and 2, wife and child at the rate of Rs.1,250/- and Rs.750/- respectively, per month. 2. It is admitted that petitioner married respondent No.1 and in that wedlock respondent No.2 was born. Respondent No.1 alleged that she was even forced to take medicines to abort her pregnancy and it once so happened. Ultimately she was sent out of the matrimonial home on 02-02-06. Petitioner has neglected and refused to maintain them. Respondent No.1 claimed that petitioner is a wholesale and retail dealer of fowls, is earning Rs.10,000/- per month therefrom and Rs.15,000/- per annum from his landed properties. Petitioner denied the allegations and claimed that respondents left the house without his consent or knowledge. Respondent No.1 deserted him since she was doing teachers R.P.F.C.No.255 of 2009 2 training course and thought that she is educationally higher placed than him. He is only an employee in a chicken stall where he get Rs.1,500/- as monthly income. Court below found that there is no reason to disbelieve the evidence of respondent No.1 regarding mental and physical cruelty and at any rate it came in evidence that during pendency of the petition on 10-01-08 petitioner married another women, a child was born in that wedlock and that gave sufficient justification for respondent No.1 living away from the petitioner. Court below also found that though in the counter filed by the petitioner there is an offer to maintain respondents no such offer was put to respondent No.1 when she was in the box nor did petitioner say so when examined as RW.1. So far as the alleged ill-treatment is concerned the courts below found that though respondent No.1 has not produced documents to show that her pregnancy was aborted, there is no reason to disbelieve her evidence. Learned Judge has stated the circumstances which persuaded him to accept the version of respondent No.1. At any R.P.F.C.No.255 of 2009 3 rate though during the pendency of the petition in the court below petitioner married another lady, a child is born in that wedlock and hence respondent No.1 cannot be compelled to stay with petitioner. She therefore is entitled to have separate residence and maintenance. So far as respondent No.2 is concerned, petitioner is bound to maintain her notwithstanding the proprietary of her custody with respondent No.1. Therefore there is no reason to interfere with the finding of the court below as to the entitlement of respondents for maintenance. 3. Amount awarded to respondent No.1 is only Rs.1,250/- per month and what is awarded to respondent No.2 aged 5 years in 2007 is only Rs.750/- per month. Total amount payable only Rs.2,000/- per month. I am not inclined to think, considering the needs of respondents that the amount awarded is excessive. 4. So far as means of petitioner is concerned, it is true that respondents did not produce documentary evidence but in the R.P.F.C.No.255 of 2009 4 course of cross examination of petitioner he was shown the visiting card of a chicken farm with the mobile phone number petitioner is using printed on that card. He claimed that the mobile phone belonged to his employer and it was given to him for use. Learned judge observed that it is unlikely that petitioner employed in a chicken stall earning Rs.1500/- per month was given the mobile phone of its owner for use and that mobile phone number is shown in the visiting card of the owner. Learned judge, from the circumstances found that petitioner has sufficient means to maintain respondents. At any rate the fact that he has chosen to marry again and set up another family indicates his capacity to maintain two families. I am not inclined to think that amount awarded is beyond his paying capacity. There is no merrit in this revision and it is accordingly dismissed. THOMAS P JOSEPH, JUDGE R.P.F.C.No.255 of 2009 5 Sbna/