IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 RPFC.No. 271 of 2008() ---------------------- MC.799/2007 OF THE FAMILY COURT, MALAPPURAM .................... PETITIONER/RESPONDENT --------------------------- SAKARIYA S/O. SAIDALAVI, KAYAKODE, WEST SIDE OF M.E.S., UNNIYAL P.O., NIRAMARATHUR TIRUR, MALAPPURAM. BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENTS/PETITIONER: -------------------------------------- 1. SAFREENA D/O. HAMZA KOYA, CHEERAMANTE PURAKKAL, ALUNGAL BEACH, P.O. CHETTIPPADI, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2. SAMSEERA BANU, (MINOR) 4 YEARS, D/O. SAKARIYA REPRESENTED BY MOTHER 1ST RESPONDENT. -DO- -DO- THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 271 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of September, 2008 O R D E R The petitioner has come to this court with this revision petition to assail the order passed under Section 125 Cr.P.C. obliging him to pay maintenance to his wife and child at the rate of Rs.1,500/- and Rs.800/- p.m. respectively. 2. Marriage and paternity are not disputed. The parties were before Court earlier and Ext.D1 decree for restitution of conjugal rights was passed by the Family Court, Manjeri. The claim for maintenance was resisted not on the ground of Ext.D1, but on the alleged ground that subsequent to Ext.D1 his wife had refused to resume cohabitation and she had hence been divorced. 3. The wife did not accept the theory of divorce. She contended that she continues to be the legally wedded wife of the petitioner. There was a further contention that the petitioner had married other women also. 4. Be that as it may, the evidence before the court below was that of PW1, the claimant wife on the one hand and the R.P.F.C.No. 271 of 2008 2 petitioner/husband as RW1. Ext.D1 is the only piece of documentary evidence marked. The learned Judge of the Family Court came to the conclusion that though a plea of divorce was raised, there was absolutely nothing to substantiate the said plea of divorce. The learned Judge took note of the decision in Shamin Ara v. State of U.P. (2002 (3) KLT 537 SC) and held that in any view of the matter a valid divorce has not been established. The learned Judge of the Family Court, in these circumstances, proceeded to award maintenance as indicated above. 5. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner submits that divorce having not been found to be true by the court below, the court below erred grossly in coming to the conclusion that the claimant wife is entitled for separate maintenance. In as much as Ext.D1 decree for restitution of conjugal rights has been passed, it must be held that her separate residence was without sufficient reasons. Therefore maintenance should not have been awarded, it is contended. 6. I find absolutely no merit in this plea at all. It was not the case of the petitioner that he is willing to maintain his wife on R.P.F.C.No. 271 of 2008 3 condition that she lives with him. His plea was only one of divorce. That plea having not been substantiated, the petitioner cannot now be permitted to fall back on a new plea and urge that the wife's separate residence is without sufficient reasons. The fact that the petitioner has raised a mischievous plea of divorce, which he does not now want to raise, reveals want of bonafides. He did not raise a plea that he is willing to maintain her wife on condition that she lives with him. On the contrary, his specific plea is that he had already divorced his wife. I am, in these circumstances, of the opinion that the petitioner cannot now fall back on Ext.D1 and advance a contention that the wife's separate residence is unjustified. Even the fact that the petitioner has raised an unsubstantiated plea of divorce to avoid matrimonial responsibilities is itself sufficient to justify a separate residence of the wife. 7. No other contentions are raised. I am satisfied that this revision petition only deserves to be dismissed. I do so. (R. BASANT) Judge tm