IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH MARCH 2010 / 18TH PHALGUNA 1931 RPFC.No. 448 of 2007() ------------------------------- MC.132/2006 of THE FAMILY COURT, KASARAGOD .................... PETITIONER/RESPONDENT ---------------------- T.MUHAMMEDALI SHIHAB, S/O.P.P.ABDUL KHADER, AVANTHI PUBLICATION, NEAR L.V.TEMPLE, P.O.KANHANGAD, HOSDURG. BY ADVS. MR.B.S.SWATHY KUMAR MR.BINDU SREEKUMAR RESPONDENT(S): PETITIONERS & STATE -------------------------- 1. SABEENA P., D/O.ASSAINAR, A.P.K., R/AT MEHAFUNNISA MANZIL, CHERUVAPADI, CHANADUKKAM, CHEEMENI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. SAHABAS, AGED 2 YEARS, (MINOR) S/O.SABEENA & MOHAMMEDALI SHIHAD, (REPRESENTED BY HIS MOTHER & GUARDIAN THE IST RESPONDENT). 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 SRI.T.K.VIPINDAS R3 BY SR. PUBLIC PROSECUTOR MR.BENNY VARGHESE THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N.KRISHNAN,J. ====================== R.P.(FC).No.448 OF 2007 ====================== Dated this the 9th day of March 2010. O R D E R This revision is preferred against the order of maintenance passed by Family Court Kasaragod in M.C.No.132/2006. The wife and son moved an application for maintenance against the revision petitioner and has been directed to pay Rs.2,500/- as maintenance to the wife and Rs.500/- to the child. It is against that decision the husband has come up in revision. So far as it relates to separate living is concerned the husband was very uncharitable to the wife and is making allegations of unchastity. Throwing the allegation of unchastity of wife without proof itself amounts to cruelty and gives a ground for the wife to live separately from the husband. Therefore I do not propose to interfere with the said finding of the Family Court regarding reasons for separate living. R.P.(FC).No.448 OF 2007 2 2. Now to the quantum. Really there is no clear evidence to fix the quantum. The husband had produced one document Ext.D1 which is a basic tax receipt in the name of wife. The Family Court simply does not believe it. There was duty cast upon the wife to explain the same and show that she is not having any property at all and that the document cannot be accepted. Equally is the husband who admittedly is a person dealing with books. The wife would contend that he is working in a managerial cadre with Avanthi Books, whereas the husband would deny the same. He is dealing with books is admitted. Even otherwise a 25 year old man who is healthy, morally and legally is bound to maintain his wife and son. He cannot escape from that liability. It is also to be remembered that when quantum is fixed the capacity of the husband to pay also has to be considered to strike a balance between necessity and capacity. So considering the materials available, the age of the person and other circumstance, I feel, it is just and sufficient if maintenance is ordered at the rate of Rs.1,500/- R.P.(FC).No.448 OF 2007 3 to wife and Rs.500/- to child, both payable from the date of petition, namely, 17.7.06. If any amount is paid or credited that shall be given credit and balance need be paid. The R.P.F.C is disposed of accordingly. M.N.KRISHNAN,JUDGE. mns