IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 RPFC.No. 17 of 2008() --------------------- MC.156/2006 OF THE FAMILY COURT, KASARAGOD .................... REVN. PETITIONER/RESPONDENT ----------------------------------------------- ABDUL BASHEER P.A., AGED 34 YEARS, S/O. LATE AHAMMED, RESIDING AT IRIYANA HOUSE, ISWARAMANGALA VILLAGE, PUTHUR TALUK, DAHSHINA KANNADA DISTRICT, KARNATAKA STATE. BY ADV. SRI.M.SANTHOSHKUMAR RESPONDENT(S): PETITIONER ------------------------- HASEENA @ UMMALIMMA, AGED 26 YEARS, W/O. P.A.ABDUL BASHEER, SHANTHIMALA HOUSE, DELAMPADY VILLAGE & POST, KASARAGOD TALUK AND DISTRICT. ADV. SRI.SURESH KUMAR KODOTH THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 17 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of November, 2008 O R D E R In this revision petition, the petitioner/husband assails an order passed under Section 125 Cr.P.C. obliging him to pay maintenance at the rate of Rs.1,500/- p.m. to the claimant, his wife. 2. Marriage and separate residence are admitted. Before the Family Court a contention was raised that the wife is not justified in residing separately. There was a further contention raised that the wife is not unable to maintain herself. The claim was for an amount of Rs.2,500/- p.m. A contention was raised that the said amount is excessive. 3. Before the court below only the rival contestants were examined as PW1 and RW1. The claimant/PW1 asserted that she is justified in taking up separate residence on account of the cruelty which was meted out to her. She deposed that she does not have any means and she is unable to maintain herself. The R.P.F.C.No. 17 of 2008 2 petitioner/husband as RW1 asserted that the wife is residing separately without any sufficient reason. He further asserted on oath that she has income of her own from her properties. He further urged that he does not have sufficient means to pay the amount of Rs.2,500/- 4. The learned Judge of the Family Court has considered the oral evidence of PW1 and RW1. The learned Judge came to the conclusion after adverting to the totality of circumstances that the specific instances of cruelty alleged by the wife have not been proved satisfactorily. However, the learned Judge came to the conclusion from the totality of facts and circumstances that the wife is entitled for separate maintenance. Expressing the hope that the parties shall resolve the disputes and shall resume the cohabitation, it was directed that maintenance must be paid at the rate of Rs.1,500/- till such date of re-union. 5. The petitioner claims to be aggrieved by the impugned order. What are the grounds? First of all it is contended that separate residence by the wife is unjustified. I find that there is no specific and satisfactory finding recorded by the learned Judge of the Family Court that the separate residence of the wife on the basis of the alleged R.P.F.C.No. 17 of 2008 3 cruelty advanced by her is justified. Therefore the pleadings were gone into in detail. The oral evidence of PW1 and RW1 were also considered in detail. In fact the husband has in the course of cross examination of PW1 not raised any specific contention to show that she is residing separately without sufficient cause. In fact from the evidence of RW1 it has come out that he had also agreed that the wife could reside at her house and he shall pay maintenance to maintain her at her house. While appreciating the evidence of PW1 that she is entitled to reside separately, this admitted circumstance, it appears to me, had definitely weighed with the learned Judge of the Family Court. The theory that the young wife is residing away from her husband without any reason does not inherently inspire confidence. Her evidence that she has valid reasons for such separate residence does rhyme better with reason, logic and natural and probable human behaviour. I am satisfied from the totality of facts and circumstance that the conclusion of the learned Judge that the wife is entitled for separate residence does not at all warrant interference. 6. Though there is a contention that the wife is not unable to maintain herself and she has income from the properties, no tangible R.P.F.C.No. 17 of 2008 4 evidence whatsoever was placed before court. A suggestion is made that the father of the claimant is no more and she is one of the legal heirs of her father and therefore she must be getting income from the properties. No tangible evidence is produced and in these circumstances the Family Court committed no error in accepting her evidence that she was unable to maintain herself. 7. The petitioner was admittedly employed outside Kerala. There is, of course, no specific and definite evidence to show what his present employment was. But certainly a court must realistically take note of the difficulties of an estranged wife to adduce precise evidence about the nature and income from the employment of the husband. Reckoning the petitioner just an able bodied person, I am satisfied that the quantum of maintenance fixed does not warrant interference. It follows that the impugned order does not warrant interference. 8. This revision petition is hence dismissed. (R. BASANT) Judge tm