IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RPFC.No. 88 of 2009() ------------------------------ MC.367/2007 OF THE FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- M.T.PRASEED, S/O.PIRUNGAN, AGED 39, MANNILTHODIYIL HOUSE, CHERUPPA AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVOCATE MR. E.NARAYANAN RESPONDENTS: ----------------------- 1. VINEETHA, D/O.CHANDRAKURUP, PERUMINA THUVATTU HOUSE, CHEVAYUR AMSOM AND DESOM OF KOZHIKODE TALUK. 2. ADARSH, AGED 6, MINOR, REP. BY HIS MOTHER, (THE FIRST RESPONDENT). THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J - - - - - - - - - - - - - - - - - - - - - - - R.P.(F.C) 88 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of March, 2009 O R D E R This petition is filed by the husband against the order of maintenance passed in favour of the wife and child in M.C. No. 367 of 2007 of the Family Court, Kozhikode The unfortunate couple got married on 24.1.1999 and a child had been born to them in the wed lock. The child was aged six years at the time of the petition. The family court on a consideration of the entire merits granted Rs.1,000/- as maintenance to the wife and Rs.500/- as maintenance to the child. It is against the decision, the revision has been preferred by the husband. When the matter came up for admission, the learned counsel for the revision petitioner very strongly contends before me that the Family Court has missed the real position of law and contended for the position that the husband is bound to maintain a wife who is unable to maintain herself only when she is living separately with a reasonable cause. Here, the husband is armed with a decree of restitution of conjugal rights which shows that the separation is not on the fault of the husband and so the order requires in reference. The position of law argued R.P.(F.C) 88 of 2009 -2- by the learned counsel for the petitioner undoubtedly is correct. The submission of the learned counsel is that the husband had sent a money order to the child for Rs.100/- in the address of the mother where she is alleged to be working. It was refused. Therefore, the learned counsel would contend that the mother is employed and so the husband is not liable to maintain. But here is a husband at the age of 37 is totally unwell, according to him. He is always having body pain. He will get work only for 10 days and therefore he cannot maintain his wife also. The law regarding the maintenance is not technical. A person who is having a good physique as a husband is bound to maintain his wife. A money order is send to an address and if it is refused one shall not arrive at the decision that the wife is having considerable amount of income and she is in a position to maintain herself. To start with there was a case that the wife was having 50 cents of land and derive income from the same but at the time of examination, RW1 had given a go bye to the same and it is recorded by the learned District Judge. So far as the restitution of conjugal rights is concerned, it is an ex parte order. I am conscious that an ex parte order is also a binding order and that binding order may give a chance to the husband to move an application for divorce or judicial separation if the wife refuses or R.P.(F.C) 88 of 2009 -3- neglects to join him within a period of two years. Therefore the factum of obtaining the decree for restitution of conjugal rights by itself will not prove that the wife is living separately without any valid reason. Here is a father who does not know whether his child is studying or not. A perusal of the order would reveal he has no concern for his wife and child. It is such a person wants to take the umbrellas under a decree for restitution of conjugal rights it cannot be accepted. Therefore the maintenance awarded by the court below is only just and reasonable and in the year 2009 granting of maintenance of Rs.1,000/- to the wife and Rs.500/- to the child, it cannot be stated as excessive by any stretch of imagination. I do not want to interfere with the decision rendered by the Family Court and if there is any change of circumstances at a latter stage, it is for the husband to move the court for variance of the order. This R.P.(F.C) is dismissed. M.N.KRISHNAN, JUDGE rhs