IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 RPFC.No. 459 of 2009() ---------------------- MC.117/2005 of FAMILY COURT, KASARAGOD .................... PETITIONER/RESPONDENT: ------------------------------- KRISHNAKUMAR @ SUNI, S/O.P.BALAKRISHNA MARAR, AGED 42 YEARS, PUTHEN VEEDU, P.O.PAPPINISSERRY WEST, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENT(S): PETITIONERS -------------------------- 1. K.V.USHA, D/O.K.V.KARTHIYAYANI, AGED 31 YEARS, ACHIKULANGARA, P.O.PILICODE, HOSDURG TALUK. 2. K.V.VISHWANATHAN, AGED 10 YEARS. 3. K.V.VISHNU, AGED 8 YEARS. (RESPONDENTS NOS.2 & 3 ARE MINORS REP. BY THEIR NEXT FRIEND AND GUARDIAN, IST RESPONDENT MOTHER). ADV. SRI.JAWAHAR JOSE FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.12720 OF 2009 IN RPFC NO.459 OF 2009 DISMISSED 22.03.2010. SD/=M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. cl M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.459 OF 2009 ............................................. Dated this the 22nd day of March, 2010. O R D E R This revision is preferred against the order of the Family Court, Kasaragod in M.C.No.117/2005. The wife and children, who moved for maintenance, were ordered to be paid Rs.1,000/= each by the Family Court, Kasaragod and aggrieved by the same, the husband has come up in revision. 2. Heard the learned counsel for the revision petitioner as well as the respondents. The learned counsel for the revision petitioner would contend that though paternity of the two children are admitted, the revision petitioner has not admitted that the first petitioner in the MC is his wife and that any marriage has taken place between them. On the contra, the wife would contend that both of them belong to the same community and on 12.12.1993 as per the customary right, marriage has taken place and children are begotten in the wedlock. It is also brought to my notice that there was another proceeding against the revision petitioner alleging the case of bigamy and it has ended in conviction against : 2 : R.P.(F.C).No.459 OF 2009 which an appeal is pending. I do not want to say anything on that case so as to cause prejudice to the revision petitioner. We are only concerned with the marriage of the revision petitioner with the first petitioner in the MC. 3. The contention of the maintenance petitioner is to the effect that they were married as per the custom on 12.12.1993 and children had been born in that wedlock. She had entered the box and given evidence in support of the marriage. PW2 is none other than the mother of the petitioner. She had also deposed before he court that the marriage had taken place and it is as per the said marriage, they had lived as husband and wife. PW3 is another witness who belongs to a different community and he was also examined and when a question was put to him to the effect that whether he was invited for the marriage by the father of the girl, he replied that her father was not alive at that time. So the court below felt that he is deposing the true facts. The evidence of PW4 also was considered by the family court and it is stated that it is not shattered. So, the evidence of PWs 1 to 4 were found to be intrinsically : 3 : R.P.(F.C).No.459 OF 2009 reliable and inherently probable for acceptance. It is in this background the case of the revision petitioner has to be analysed. According to him, he was working as a conductor in the route Kasaragod - Kannur and the first petitioner in the MC used to travel in that bus and he used to see the lady which later lead into physical intimacy and he used to visit her house and the children were begotten in that relationship. It is seen that one child is born in the year 1995 and the other child is born in the year 1996. Therefore the family court was right in holding that the marriage is established and children are begotten in the wedlock. 4. Next question is regarding the quantum of maintenance. Even according to the wife, he was only a security getting a monthly income of Rs.4,500/=. The ordered maintenance is Rs.3,000/=. The learned counsel for the respondents would strongly contend before me that whenever a man is physically able and capable of working, that is one of the criterion to be looked into for fixing the quantum. Section 125 of the Cr.P.C avoids destitution among women, children and parents. The legislature was equally conscious : 4 : R.P.(F.C).No.459 OF 2009 of that fact and that is why it held that the court has to take into consideration the capacity of the husband to pay or in other words necessity has to be taken into consideration with the capacity to pay and the balance has to be struck off in between the two so that destitution is avoided as well as undue hardship and peril is avoided to the husband. It is seen that the revision petitioner is living with another lady. I do not want to describe her as a wife for the reason that the matter is pending consideration before an appellate forum against a conviction under Section 494 of IPC. 5. Considering the age of the children as well as necessity of the children and also taking into consideration the income of the husband, I feel that in the fitness of things, a little leniency can be shown. So, I fix the maintenance at Rs. 1,000/= to the wife and Rs.800/= each per month to the children that too payable from the date of petition. The wife and children are entitled to move when there is change of circumstances under Section 127 of Cr.P.C. 6. In the result the revision petition is partly allowed by fixing the quantum of maintenance at Rs.1,000/= to the wife : 5 : R.P.(F.C).No.459 OF 2009 and Rs.800/= each to the children per month payable from the date of petition. When there is change of circumstances, the parties can move for variance under Section 127 of Cr.P.C. The mother is entitled to receive the amount on behalf of the children. If any amount is paid or deposited, that shall be given credit to. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 6 : R.P.(F.C).No.459 OF 2009