IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 RPFC.No. 204 of 2009() ---------------------- MC.641/2008 of F AMILY COURT, MALAPPURAM .................... PETITIONER/RESPONDENT ----------------------------------------- ABDUL SALIM,S/O.ABDU RAHIMAN, VALIYAVEETTIL HOUSE,EZHUPARAMBU AMSOM, KUNIYIL,AREACODE POLICE STATION. BY ADV. SRI.DILIP MOHAN RESPONDENT(S): PETITIONERS -------------------------- 1. RASIYA,AGED 30 YEARS,D/O.MUHAMMED, ARENGAL HOUSE,KEEZHUPARAMBU AMSOM, KUNIYIL,AREACODE POLICE STATION. 2. ASHIKH,AGED 9 YEARS (MINOR), (MINOR RESPONDENT IS REP.BY HIS GUARDIAN MOTHER IST RESPONDENT). THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.(FC) No.204 of 2009 -------------------------------------- Dated this the 12th day of June, 2009. ORDER Heard counsel for petitioner. 2. Husband, in a proceeding for payment of maintenance allowance to his wife and son under Section 125 of the Code of Criminal Procedure (for short, “the Code”) has come up in revision. Court below awarded a total sum of Rs.2,750/- as maintenance allowance the split up figure being Rs.2,000/- for wife aged 30 years and Rs.750/- for son aged 9 years. That, petitioner married respondent No.1 on 2.7.1999 and that respondent No.2 was born in the wedlock are not disputed. Respondent No.1 alleged matrimonial cruelty and harassment at the hands of petitioner and pleaded that petitioner neglected and refused to maintain respondents. She claimed that she has no means to maintain herself while petitioner has sufficient means as he is running a grocery shop and earning Rs.15,000/- per month and has landed property from which he is getting Rs.5,000/- per month. Petitioner however denied that he has any such income. Petitioner claimed that respondent No.1 has sufficient means as she is working in an anganwadi and earning Rs.35/- per day, she has landed property and has given a house on rent wherefrom she is getting income. RP(FC) No.204/2009 2 3. Respondent No.1 gave evidence as PW1 and spoke to her case. She admitted that she was working as helper in an anganwadi for fifteen days on leave vacancy and got Rs.35/- per day. She denied that she has any landed property. She also denied that she owned and let any house on rent. 4. Petitioner asserted his case when examined as RW1. He could not substantiate his case as to respondent No.1 having means. He was not able to produce any document to show that respondent No.1 has any property or income as he asserted. On the other hand he admitted that he has a grocery shop. He claimed that he has taken a loan of Rs.1,50,000/- from the bank with liability to pay the amount in instalments at the rate of Rs.6,000/- per month. Courts below found that petitioner has sufficient means to pay maintenance to respondents. That finding is under challenge in this revision. Learned counsel asserted that petitioner has no means but respondent No.1 has means. Counsel submitted that petitioner is undergoing treatment as proved in the case and hence court below was not correct in casting liability on him to pay maintenance to his wife and son. 5. It is true that petitioner produced some documents to show that he had been undergoing treatment at some point of time. Ext.D1 is the treatment record of petitioner which shows that he underwent laprotamy surgery and was RP(FC) No.204/2009 3 discharged cured on 12.12.1999. Exts.D2 to D5 are also his treatment records during the years, 1996, 2005, 2006 and 2008. But it is seen that it is after the treatment as per Ext.D1 that he availed loan of Rs.1,50,000/- from the bank. He has also availed a loan of Rs.70,000/- for the purpose of business in the year 2007. Therefore, even from his evidence it is clear that he has been raising funds for his business and had the capacity to repay the loans. Loans were taken for the development of his own business. Hence the contention that he has no means or he is incapable of raising funds for payment to respondents cannot be accepted. 6. The fact that petitioner has challenged even the order to pay maintenance allowance at the rate of Rs.750/- per month to his son aged nine years indicates his attitude towards the respondents. He has no case that he was prepared to take the respondents and maintain them. Therefore, they are entitled to separate residence and maintenance. I am satisfied that petitioner has sufficient means to pay maintenance. 7. Coming to the question whether maintenance awarded is excessive, I must bear in mind that the aggregate amount awarded is only Rs.2,750/- per month to the wife aged 30 years and son aged nine years. RP(FC) No.204/2009 4 Considering the basic needs and requirements of the respondents and the cost of living I am not inclined to call it as luxury. In the facts and circumstances of the case, order under challenge does not require interference. Revision petition fails. It is dismissed. Crl.M.A.No.5559 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks