IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 RPFC.No. 52 of 2008() --------------------- AGAINST THE ORDER DATED 01/02/2007 IN CMP.408/05 IN MC.42/1990 of OF FAMILY COURT, KOZHIKODE .................... PETITIONER/RESPONDENT. --------------------------------------- KRISHNANKUTTY, S/O. ARAMUGHAN, METHALE MENANCHERY HOUSE, P.O.VENGERI, KOZHIKODE. BY ADV. SRI.K.B.GANGESH RESPONDENTS: PETITIONER. ------------------------ ELAMBILASSERY LEELA, D/O. SANKARAN KUTTY, OZHAKKUZHIYIL HOUSE, KARASSERY, MUKKAM, KOZHIKODE. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21/02/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 52 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2008 O R D E R This Revision Petition is directed against an order passed under Section 127 Cr.P.C. where under the maintenance granted to the claimant/wife was enhanced to Rs.1,000/- p.m. 2. Marriage is admitted. Separate living is also conceded. The wife came to court as early as in 1984 claiming maintenance. She was awarded an amount of Rs.50/- p.m. She came to Court again in 1990 for enhancement of the amount. The amount of maintenance was enhanced to Rs.100/- p.m. In 1996, it is alleged, that the lady came to court with a claim for further enhancement. That claim was rejected by the court. The order is not produced. There is dispute as to why further enhancement was not awarded. Even now before me copy of that order is not produced to enable me to find out the reason that prompted the court at that stage to reject the claim for enhancement. R.P.F.C.No. 52 of 2008 2 3. Be that as it may, the claimant/wife came to Court in 2005. She prayed that the maintenance awarded to her may be enhanced. The claim was resisted. It was contended that the petitioner does not have the means to pay any enhanced maintenance. It was further contended that the wife is having other employment and that in the light of the income she has from such other employment, she is not entitled for maintenance. 4. The parties went to trial on these contentions. The claimant/wife examined herself as PW1 and the petitioner herein was examined as RW1. The Manager of the Bank, where PW1 is allegedly working as Sweeper, was examined by the petitioner as RW2. I must straight away observe that RW2 asserted that PW1 is not at present employed. She was formerly working as a temporary employee, he asserted. 5. The petitioner is admittedly a Carpenter. He is aged about 62 years on the date of the petition for enhancement. He contended that he does not get adequate income to pay an amount of Rs.1,000/- to his wife. R.P.F.C.No. 52 of 2008 3 6. The learned Judge of the Family Court, after taking into consideration all the relevant circumstances, came to the conclusion that the petitioner is liable to pay enhanced maintenance at the rate of Rs.1,000/- p.m. with effect from the date of the order. 7. The petitioner claims to be aggrieved by the order. What is the grievance? The short contention is that the enhancement granted is excessive. The claimant wife is otherwise employed. The petitioner is sick and is unable to work. In these circumstances it is contended that the quantum of maintenance awarded is excessive. The major son of the petitioner is living with the claimant/wife. The unmarried daughter is living with the petitioner. In these circumstances the quantum of enhanced maintenance awarded is at any rate excessive. 8. I have considered all the relevant circumstances. I have been taken through the evidence in the case. Going by the needs of PW1, it cannot, by any stretch of imagination, be held that an amount of Rs.1,000/- p.m. as maintenance is excessive. Though it is contended that PW1 is employed as a Sweeper in a bank, the evidence of RW2 knocks the bottom out of that theory. The petitioner has not been able R.P.F.C.No. 52 of 2008 4 to establish that his wife has any income. The counsel prays that if opportunity is given, the petitioner shall be able to produce the order rejecting the claim for enhancement in the petition filed in 1996. Why it was not produced before the Family Court and why it is not produced so far before this Court is not explained. But that does not appear to be crucial. Even assuming that at the time when that petition was filed, the claimant was having some other employment, the evidence of RW2 clearly shows that she is not having such employment now. The petitioner has no case that the claimant is having any other employment than under RW2. 9. It is true that there is material to show that the major son of the claimant is living with her. The mere fact that the petitioner can look up to her son under Section 125 Cr.P.C. is no reason to absolve a husband of his liability to pay adequate maintenance to his wife. If the petitioner has sufficient means to pay the amount, I will refuse to interfere with the order passed by the court below even assuming that the son of the claimant wife is living with her and she can legitimately look up to him also to support her. That does not obliterate the right R.P.F.C.No. 52 of 2008 5 of the claimant to claim maintenance against her husband. The only question to be considered is whether the petitioner has sufficient means to share Rs.1,000/- for the maintenance of his wife. He is a Carpenter. He is aged about 62 years. He has always been working as Carpenter. The learned Judge of the Family Court realistically took into consideration the fact that a senior carpenter must be getting handsome income by wages. I find no reason to disagree. The estranged wife living separately from her husband for a long number of years will not be able to and cannot reasonably be expected to adduce authentic evidence about the quantum of income that he earns. Reasonable inferences will have to be drawn. Broad probabilities will have to be reckoned. I find absolutely nothing wrong in the approach made by the court below and the conclusion that the petitioner must be imputed and assumed to have sufficient income to spare an amount of Rs.1,000/- p.m. for his wife. 10. The learned counsel for the petitioner submits that the petitioner is ill. Significantly except the word of the mouth of the petitioner, there is not a scintilla of evidence to show that he is laid up R.P.F.C.No. 52 of 2008 6 and unable to make his livelihood as a Carpenter. That contention also must fall to the ground. In these circumstances I am satisfied that this revision petition does not deserve admission. It deserves to be and is hereby dismissed. (R. BASANT) Judge tm