IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 RPFC.No. 294 of 2008() ---------------------- AGAINST THE ORDER DATED 27/02/2008 IN CMP.381/2007 IN MC.403/1998 IN of FAMILY COURT, KOZHIKODE. .................... REVISION PETITIONER/PETITIONER/M. C RESPONDENT ------------------------------------------------------------------ U.K.AZEEZ, S/O.HAMSA, UPPALAKANDY HOUSE, AZHIYUR AMSOM DESOM, AZHIYUR CHUNKAM, VADAKARA TALUK, VADAKARA P.S.L., REP. BY 2ND WIFE AND NEXT FRIEND, MARIYA SHAHADA. BY ADV. SRI.SRINATH GIRISH SRI.E.NARAYANAN RESPONDENT(S): RESPONDENTS/M.C PETITIONERS ------------------------------------------ 1. PAZHANGAVIL SAINABA, D/O.MUMMY, KAVUMVATTOM AMSOM DESOM, P.O.NADERI, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. SAFNEETHA, AGED 26 YEARS. 3. MUHAMMED SHAFEEQUE, AGED 24 YEARS. 4. FASILA, AGED 22 YEARS. 5. ANNAS, AGED 16 YEARS, REP. BY GUARDIAN MOTHER IST PETITIONER SAINABA, ALL RESIDING AT THE ABOVE PLACE. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.(FC) No.294 of 2008 -------------------------------------- Dated this the 19th day of August, 2009. ORDER Heard counsel on both sides. 2. This revision is in challenge of order dated 27.2.2008 on C.M.P.No.381 of 2007 in M.C.No.403 of 1998 of Family Court, Kozhikode. Basing on a joint statement filed by the parties, court below ordered maintenance to the respondents as per order dated 28.10.1999 in M.C.No.403 of 1998. Petitioner states that on 7.9.2000 he met with a motor accident and suffered grievous hurt. Now on account of physical and mental infirmity he is not able to earn and pay maintenance to the respondents. Petitioner states that his condition is such that as a result of the accident he is not even able to speak properly. He filed C.M.P.No.381 of 2007 seeking cancellation of the order of maintenance under Section 127 of the Code of Criminal Procedure. That petition was opposed by the respondents contending that petitioner has no disability, physical or mental as contended by him. It is contended that petitioner has contracted another marriage and begot a child in that wedlock. Petitioner has received more than Rupees four lakhs in the motor accident case in which he suffered hurt. In the court below the second wife of petitioner gave evidence as PW1 and proved Exts.A1 and A2. Respondent N.1 gave contra evidence as RW1. Learned Judge found that Exts.A1 and A2 are not sufficient to prove that RP(FC) No.294/2008 2 petitioner is incapable of earning and dismissed the petition. Challenging that order, this revision is filed. According to the learned counsel, finding of the court below is not correct. It is submitted that from the evidence adduced by petitioner, court below ought to have found that he is unable to earn and exonerated him from paying maintenance allowance. Counsel for respondents supported the order under challenge. 3. Ext.A2 is the copy of FIR dated 8.9.2000 produced to show that petitioner met with an accident on 7.9.2000 which fact is not seriously opposed by the respondent. What remained is Ext.A1, certified copy of a certificate of disability allegedly issued by the Medical Board, Kozhikode on 6.1.2005 certifying disability of the petitioner as 60%. It is true that the document is marked through PW1. That certificate is issued by the Medical Board and as the evidence goes, petitioner has produced that document in the Claims Tribunal where admittedly compensation was awarded to the petitioner. A mere production of the certificate is not sufficient. Medical Officer who is said to have examined petitioner and assessed his disability has to be examined as witness with opportunity to the respondents to cross examine him. It is also an issue to be decided whether disability certified in Ext.A1 as on 6.1.2005 continued to be so even as on the date petitioner filed C.M.P.No.381 of 2007 in the court below. The Medical Officer has to give evidence regarding the alleged disability of petitioner as on date of examination. These are matters which petitioner has to prove to sustain his claim in C.M.P.No.381 of 2007. I am not satisfied that appropriate evidence is let in by the petitioner to support his claim for RP(FC) No.294/2008 3 exoneration from paying maintenance. However I am inclined to give an opportunity to the petitioner to adduce evidence in support of his contention. 4. It is submitted by learned counsel for respondents that the entire amount payable as per C.M.P.(Ex.) No.527 of 2009 has not been paid by the petitioner. Learned counsel for petitioner in fairness submitted that without prejudice to his contention, petitioner would pay the balance amount payable on that C.M.P. on or before 10.9.2009. That submission of learned counsel is recorded. 5. In the light of what I have stated above, the order under challenge is liable to be set aside to give opportunity to the parties to adduce further evidence. Resultantly, this revision petition is allowed. Order under challenge is set aside and the matter is remitted to the court below for fresh consideration and disposal after giving both sides to adduce further evidence. Parties shall appear in the court below on 30.9.2009. THOMAS P.JOSEPH, Judge. cks