IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 RPFC.No. 344 of 2007() ---------------------- MC.659/2006 of FAMILY COURT, MALAPPURAM DTD. 13/07/07 .................... REVISION PETITIONER/RESPONDENT: --------------------------------------------------------- SWAPNA KUMAR, S/O.APPUNI, AGED 41 YEARS, RESIDING AT NAMBALA HOUSE, P.O.KOLAKKATTU CHALI, CHELEMBRA, MALAPPURAM DISTRICT. BY ADVS. MR.P.K.RAMKUMAR, SMT.ANITHA RAMKUMAR. RESPONDENT(S): PETITIONERS: ------------------------------------------------ 1. SAJITHA, D/O SADANANDAN, AGED 31 YEARS, PALAKKAL HOUSE, P.O.KOLAKKATTU CHALI, CHELEMBRA, MALAPPURAM DISTRICT. 2. VAISHNAVI, D/O.SAJITHA, MINOR, AGED 11 YEARS, ...DO. REPRESENTED BY 1ST RESPONDENT. 3. GAYATHRI, D/O.SAJITHA, MINOR, AGED 6 YEARS, ... DO. REPRESENTED BY 1ST RESPONDENT. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== RP(FC) No.344 OF 2007 ===================== Dated this the 20th day of March 2009 O R D E R This revision petition is preferred against the order of the Family Court, Malappuram in M.C.No.659 of 2006. The maintenance petition is filed by the wife and two children. The husband is an ex army man and the court below directed him to pay a maintenance of Rs.2,000/- to the wife, Rs.1,000/- to the first child and Rs.800/- to the second child. It is against that decision, the husband has come up in revision. 2. Though respondents are served, there is no appearance for them. Heard the learned counsel for the petitioner and perused the documents supplied by him. Learned counsel would strongly contend before me that the petitioner after commutation of the pension has got only a pension of Rs.1,016/- and though he was employed in the Calicut University as a security personnel he has been terminated and therefore he is not having income so as to pay Rs.3,800/- as maintenance to the wife and children. A perusal of the pension order would reveal that he was working as a Naik in the army service and the eligible pension was Rs.1,846/-, out of which he RP(FC) 344/2007 -:2:- has commuted Rs.830/- and the balance receivable pension as on 1.1.2005 was Rs.1,016/-. Now it is a known fact that substantial increase had been given to the army personnel and certainly being a pensioner there will be some hike though not for the entire amount for the reason that his retirement was before 1.1.2005. He is only aged 40 years and being an army personnel he would be sufficiently healthy to do work. Now we find in the society that there are large number of security personnel in all walks of life and there is demand for them. Most probably on account of the same, he was employed by the Calicut University as a security personnel, it is submitted by the learned counsel that he had been terminated. Even if he is terminated from there, I am certain that he will not be able to sit quite at the age of 40 and he will be able to do some work. But, without any basis directing the husband to pay a large sum is not in accordance with law. When maintenance is ordered, basic factor to be taken note of is that what is the paying capacity of a person who is directed to pay amount. It is equally true that the need of the receiving person also is to be taken into consideration, but the striking balance has to be on the basis of the capacity to pay. Otherwise it will be an order in paper which cannot be implemented. The Family Court did not give any reason how it has fixed this amount. When the materials available would show that his pension is RP(FC) 344/2007 -:3:- not very high. I feel the whole matter requires reconsideration and it is sufficient by modifying the amount ordered as maintenance. I modify the order and direct the petitioner to pay maintenance of Rs.1,200/- to the wife, Rs.700/- to the first child and Rs.500/- to the second child. In case there is increase in the amount of income, necessarily the parties can resort to Section 127 of the Code of Criminal Procedure for an enhanced amount. Crl.M.C. is partly allowed. The maintenance order passed by the court below is modified by reducing the amount to Rs.1,200/- to the first petitioner, Rs.700/- and Rs.500/- to the children respectively from the date of filing of the M.C. If any amount is paid during the pendency of the case either it shall be adjusted in the order for past maintenance or in the amount that has accrued from the date of filing of the petition. M.N.KRISHNAN, JUDGE Cdp/-