IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 RPFC.No. 10 of 2010() -------------------------- MC.285/2008 of FAMILY COURT, PALAKKAD .................... REVISION PETITIONER/RESPONDENT IN M.C.285/08 OF FAMILY COURT, PALAKKAD ----------------------------------------------------------------------------- JOSE K.M., AGED 32, S/O.MATHEW, KOTTIATH VEEDU, NEAR WEST ST.MARY'S PROPERTIES, EROOR NORTH, TRIPUNITHURA, ERNAKULAM DISTRICT. BY ADVS. SRI.VARGHESE C.KURIAKOSE SRI.B.S.SURESH KUMAR SRI.T.A.ABDUL RASHEED SRI.ADEEP ANWAR RESPONDENT(S): PETITIONER ------------------------------------ 1. PRINCY, AGED 26, D/O.C.K.FRANCIS, 23/39, CHOVVALLUR VEEDU, CONVENT ROAD, PALLIPPURAM P.O., PALAKKAD TALUK. 2. VICTORIA (MINOR), AGED 2 YEARS, D/O.PRINCY, DO., REP. BY MOTHER THE IST RESPONDENT. R1-2 BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE ADVS.SRI.LIJU. M.P SMT.P.MAYA SRI.V.C.SARATH SRI.P.M.RAFIQ THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON 14/12/2011 PASSED THE FOLLOWING: svs S.S.SATHEESACHANDRAN, J. ----------------------------------------------- R.P.(F.C)No.10 of 2010 ----------------------------------------------- Dated this the 14th day of December, 2011 O R D E R The respondent in a proceeding under Section 125 of the Code of Criminal Procedure {for short “the Code”}, who has been directed by the Judge, Family Court, Palakkad in M.C.No.285/08, to pay maintenance at the rate fixed, to the claimants, who are, admittedly, his wife and child, has filed this revision. The revision petitioner is hereinafter referred to as the respondent. 2. The claimants, the wife and child, alleging neglect by the respondent, and lack of means, claimed maintenance asserting that the respondent has an income of over Rs.30,000/- per month from his business of running a furniture mart and also from his landed properties. On R.P.(F.C)No.10 of 2010 :: 2 :: account of the cruelty inflicted, the wife has to to live separately, with the child, from the husband was her case. The child suffered from serious heart ailments and is undergoing continuous medical treatment was also canvassed by the claimants to seek adequate maintenance to her from the father. 3. The respondent resisted the claims contending that the wife left the matrimonial home without justifiable reason. She suffered from mental illness and has been undergoing continuous treatment, but it was not disclosed to him, was his further case. He has moved a petition for dissolution of the marriage and it is pending adjudication was also canvassed for to resist the claim, apart from contending that his monthly income from conducting a furniture shop is hardly Rs.2,000/- to Rs.3,000/-. He is not possessed of R.P.(F.C)No.10 of 2010 :: 3 :: any landed properties was his further case to dispute his income potentiality alleged by the claimants. 4. On the materials placed by both sides which consisted of PW.1 and Exts.P1 to P19 for the claimants and RW.1 and Exts.D1 and D2 for the respondent, the court below coming to the conclusion that the wife has justifiable reason to live separately from the husband, and that her case of neglect by the respondent, and also lack of means of the claimants to eke out their livelihood, has been proved in the case, upheld the claim for maintenance. The second claimant produced before the court was found to be a physically challenged infant with both her lower limbs noticed as deformed. The evidence of PW.1, the mother, and the materials tendered showing that the child suffered from heart ailments, and R.P.(F.C)No.10 of 2010 :: 4 :: is undergoing treatment thereof, was taken note by the court in fixing the quantum of maintenance for the child. The wife was awarded Rs.3,000/- and the child Rs.5,000/- per month, as maintenance, directing the respondent to pay such sum under the impugned order. Propriety, legality and correctness of that order is impeached in this revision. 5. The learned counsel for the respondent has challenged the entitlement of the wife to claim maintenance from the husband while living separately from him, apart from impeaching the quantum of maintenance awarded to the claimants as excessive, arbitrary and unreasonable as having been fixed without determining the income of the respondent. 6. After going through the order and perusing the records of the case, I do not find any R.P.(F.C)No.10 of 2010 :: 5 :: merit in the challenges canvassed to question the entitlement of the wife to claim maintenance from the husband, living separately from him. There was no offer from the husband and in fact when examined as RW.1 he asserted that he is not interested in re-union. He has questioned the sanity of his wife contending that she suffered from mental illness. He has not brought on record any material to show that she suffered from any mental illness, and that imputation itself, which is prima facie shown to be without any basis, will be sufficient to enable the wife to live separately, leave apart her definite case that she was forced to leave the matrimonial home on account of the cruelty inflicted by the husband, which too has been found acceptable to the court below as a justifiable reason for her separate residence. R.P.(F.C)No.10 of 2010 :: 6 :: 7. The main thrust of challenge against the order by the counsel was over the quantum of maintenance awarded to the claimants, wife and child. No material was placed by the wife to show that he is possessed of landed properties and getting income therefrom, and the quantum has been fixed without determining the income of the respondent, is the submission of his counsel. The court below has arbitrarily fixed the quantum of maintenance without assessing the income of the husband, but, on mere surmises and conjunctures, according to the counsel. The respondent is conducting a furniture mart wherein he has employed a helper giving him a sum of Rs.3,000/- per month is borne out by his evidence as RW.1. When he is capable of giving Rs.3,000/- to a helper employed in his furniture shop, it is indicative that he is getting sufficient income from his R.P.(F.C)No.10 of 2010 :: 7 :: business operation of running a furniture shop. That furniture shop is a small scale unit having registration thereof as such is also not a matter in dispute. He has produced two documents, Exts.D1 and D2 to show that there was some revenue recovery proceedings in respect of the loan sanctioned to that unit, but evidently such proceedings related to a period much earlier to the present case. When the furniture mart is carried on as a registered small scale unit proper accounts are to be maintained by him over the income and expenditure. Those records were not produced before the court. The court below has correctly taken note that he has deliberately avoided the production of accounts as it would have disclosed his income. The respondent is shown to be a businessman operating a furniture shop for the last several years as a registered R.P.(F.C)No.10 of 2010 :: 8 :: small scale unit. When that be so, and that too with his submission that a worker employed in the unit is being provided Rs.3,000/- per month, that would indicate that he has sufficient income potentiality to provide a descent living to his wife and child, according to his status as a businessman. His income has not been determined and assessed by the court below while fixing the quantum of maintenance awarded to the wife and child cannot be given much merit, where it is shown that he has purposely withheld the accounts from the court. The finding made that he is possessed of sufficient income potentiality to justify the quantum fixed is more than sufficient especially where the claim under Section 125 of the Code has to be decided summarily. 8. So far as awarding a sum of Rs.3,000/- as maintenance to the wife, the quantum fixed R.P.(F.C)No.10 of 2010 :: 9 :: thereof in the proved facts cannot be considered to be excessive and unreasonable. However, with respect to the quantum of maintenance fixed in the case of the child who, at the time of making the claim was only two years, it appears, the court was persuaded to fix the quantum at R.5,000/- per month, in view of the ailments suffered by the child. There is no doubt that the child is physically challenged. However, except Exts.P1 to P3, the other records of the proceedings, Exts.P4 to P19, do not, in any way, indicate of the treatment provided to the child for the heart ailments suffered by her. In the absence of evidence showing the expenses for the medical treatment of the child on the basis of Exts.P1 to P3 alone, which only show that the child has some cardiac problems, the court below was not justified in fixing the sum of Rs.5,000/- R.P.(F.C)No.10 of 2010 :: 10 :: per month as the quantum of maintenance payable by the father to the child. The other records produced relate to ayurvedic treatment, medical bills etc., for lesser sums, which do not show of any expenditure for the heart ailments of the child. She is a physically challenged child having some heart ailment no doubt has to be taken note of in fixing the quantum of maintenance to be awarded to her. But in the absence of cogent materials showing the expenditure for treatment exorbitant sum as fixed by the court below cannot be provided as maintenance. I find that the quantum of maintenance awarded to the child has to be re-fixed and modified at Rs.3,000/- per month. The modification of the quantum of maintenance, as indicated above, reducing the sum to Rs.3,000/- per month, no doubt, shall not preclude the mother, the first claimant, to seek R.P.(F.C)No.10 of 2010 :: 11 :: alteration for re-fixing the quantum of maintenance to the child, provided there is change of circumstance, as envisaged under Section 127 of the Code. 9. The order of the court below awarding maintenance to the wife as fixed is upheld. Maintenance awarded to the second claimant, child, shall stand modified and reduced to Rs.3,000/- per month. Revision is disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.