IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 RPFC.No. 200 of 2005() ---------------------- MC.21/2005 of FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER:RESPONDENT: ---------------------------------------------------------- ABU SALIH, S/O.BICHAMU, RESIDING AT KILIYANTHIRUTHI HOUSE, P.O.FEROKE COLLEGE, KOZHIKODE. BY ADVS. MR.V.V.SURENDRAN, MR.P.A.HARISH. RESPONDENT(S): PETITIONERS: ------------------------------------------------- 1. M.K.JUBAIRIYA, D/O.MOIDEEN KOYA, RESIDING AT KARIMBIL HOUSE, MANNOOR AMSOM DESOM, KOZHIKODE TALUK. 2. DILSANA, D/O.ABU SALIH, MINOR, REPRESENTED BY MOTHER 1ST RESPONDENT. 3. BISHDALSHAFI, MINOR, REPRESENTED BY MOTHR 1ST RESPONDENT. R1 TO R3 BY ADV. MR.K.M.FIROZ THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A. NO.21582/2005 IN RP(FC) NO.200/2005 DISMISSED 3/03/2010 SD/- M.N.KRISHHAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.200 OF 2005 ............................................. Dated this the 3rd day of March, 2010. O R D E R This revision is preferred against the order of Family Court, Kozhikode in M.C.No.21/2005. The wife and two children of the revision petitioner had moved an application for maintenance and the family court granted maintenance at the rate of Rs.1,500/= to the wife and Rs.750/= each to the children. Challenging the quantum of maintenance ordered as well as the liability to pay maintenance to the second petitioner in the M.C, this revision is preferred. 2. The first question that is argued before me is that the family court had gone wrong in awarding maintenance in favour of the second petitioner in the MC. Admittedly the second petitioner is residing in an orphanage. PW1 had categorically admitted that the child is in the orphanage. Again in the cross examination she had admitted that : There is no case for the mother that she is bringing the child at least during vacation. : 2 : R.P.(F.C).No.200 OF 2005 3. So really as far as the first child is concerned, she is totally looked after by the authorities of the orphanage. As observed by the family court there is liberty for the mother getting back the child and when she takes back the child and wants to maintain her, certainly she will be entitled to claim maintenance on behalf of her as well. But as on today, as the child is only in the orphanage and as the mother is not maintaining the child and no expense is required to maintain that child and so the order of the family court awarding maintenance in favour of the second petitioner in the MC is not proper and therefore it is set aside. But I make it clear that when the child is out of the orphanage and is in the custody of the mother, then it will not dis-entitle the mother to claim maintenance on behalf of her as well by separate proceeding. 4. Now turning to the quantum. The learned counsel for the revision petitioner very strongly contends before me that the quantum awarded is excessive and beyond the limits of this man. This young man had married and begotten two children in the first wife and thereafter had : 3 : R.P.(F.C).No.200 OF 2005 taken the luxury of marrying again and his pleading that helplessness to maintain the wife cannot be accepted. Though in Mohammedan's law permission is granted to marry more than one but it is under exceptional circumstances and that he must be able to look after both the wives equally, comfortably and happily. Here the wife is little unwell. It is also seen from the evidence. He is a young man and even if he is doing the work of a casual labourer, s per the wage set up under the present condition, there is nothing wrong in making the payment of Rs.1,500/= to the wife and Rs.750/= to the second child. So, I do not propose to interfere with the quantum. 5. In the result, the revision is disposed of as follows: i. The order of maintenance granted in favour of the second petitioner in the MC is set aside with liberty to move an application for maintenance afresh on behalf of her when the child is brought back from the orphanage. ii. The quantum of maintenance in favour of the first petitioner and the third petitioner is sustained and the : 4 : R.P.(F.C).No.200 OF 2005 mother is entitled to withdraw it. The order has to take effect from the date of petition. iii.Any amount paid or deposited shall be given credit to and the amount paid on behalf of the second petitioner in the MC shall be adjusted towards maintenance payable to the first petitioner and the third petitioner. M.N. KRISHNAN, JUDGE cl : 5 : R.P.(F.C).No.200 OF 2005