IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 RPFC.No. 243 of 2008() ---------------------- MC.140/2005 of FAMILY COURT, KOTTARAKKARA .................... : REVISION PETITIONER/RESPONDENT IN THE MC --------------------------------------------------------- NIZARUDEEN, S/O.MUHAMMED KASIM, VELANKONAM, THADATHARIKATHU VEEDU, PERINGAMALA, ANADU MURI, PERINGAMALA VILLAGE, NEDUMANGADU TALUK. BY ADV. SRI.K.M.ANEESH SRI.DEVAN RAMACHANDRAN RESPONDENTS: PETITIONERS IN THE MC ---------------------------------- 1. SHYLA BEEVI, D/O.SAINABA BEEVI, THADATHARIKATHU VEEDU, CHOKKANKATTU, VALAVUPACHA P.O., CHITHARA VILLAGE. 2. ANCY (MINOR), D/O.SHYLA BEEVI, THADATHARIKATHU VEEDU, CHOKKANKATTU, VALAVUPACHA P.O., CHITHARA VILLAGE. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 30/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.C. No.243 of 2008 ------------------------------------- Dated this the 30th day of July, 2008 ORDER The petitioner in this Revision Petition challenges an order passed under Section 125 Cr.P.C obliging him to pay maintenance @ Rs.500/- and Rs.400/- respectively to his wife and minor child aged 5 ½ years. 2. Marriage is admitted. Paternity is not disputed. Separate residence is conceded. The husband took up a plea that he is willing to pay maintenance to the wife on condition that she lives with him. The wife resisted the said offer on the ground that the petitioner was guilty of matrimonial cruelty against her. She was assaulted and harassed. She was driven out of the matrimonial home by her husband during her pregnancy. She was compelled to take residence at her parental home. After she went to her parental home and after delivery, till now the petitioner has not chosen to visit her, pay any maintenance to her or even to see the child. It is true that he sent a notice demanding resumption of co-habitation. But the claimant/wife did not venture to do the same as she apprehends physical harm. R.P.F.C. No.243 of 2008 2 3. Parties went to trial on these contentions. No other evidence was adduced. The statement on oath of the claimant/wife as PW1 was there against the statement on oath of the petitioner as CPW1. The learned Judge of the Family Court evaluated the probabilities and came to the conclusion that the version of the claimant/wife deserves to be preferred to that of the petitioner. Accordingly the learned Judge proceeded to pass the impugned order. 4. The petitioner claims to be aggrieved by the impugned order. What is the grievance ? First of all it is contended that the learned Judge ought to have held that the wife is not entitled for separate maintenance as she has shown no sufficient cause to justify her separate residence. On this aspect as stated earlier, there was only oath against oath of the rival contestants. The learned Judge of the Family Court appears to have realistically evaluated and assessed the evidence on the basis of broad probabilities. 1st claimant wife with the second claimant child aged 51/2 years was residing separately from her husband. Both the petitioner and the claimant/wife were in the pink of their health and a new born baby was also there. Ordinarily and normally it would be prudent to assume that in the absence of R.P.F.C. No.243 of 2008 3 compelling reasons, a wife in such a situation may not take up a separate residence. She advances physical and mental cruelty as the reason to justify her separate residence. The petitioner was not able to advance any reasons to explain such separate residence. According to him, the claimant/wife had gone away on her own without any reasons. The sequence of events have been adverted to by the learned Judge of the Family Court. Even after separate residence, the petitioner did not visit his wife. Even after the child's birth, he did not visit the child. Broad circumstances do certainly support any to justifying the discretion exercised by the learned Judge to prefer to accept and act upon the evidence of the claimant/wife to that of the petitioner/husband. I am unable to find any satisfactory reasons which can persuade this Court to invoke the revisional jurisdiction of superintendence and correction to interfere with that discretion of the trial court. The trial court, it cannot be ignored or forgotten, has the significant advantage of seeing the witnesses performd in the witness box before it. Hence the discretions exercised by a trial court in the matter of appreciation of evidence will not be lightly interfered by this Court in exercise of the revisional jurisdiction of superintendence and correction. Unless R.P.F.C. No.243 of 2008 4 such discretions be grossly erroneous or perverse and such vice in turn leads to failure or miscarriage of justice, the revisional jurisdiction of superintendence and correction shall not normally be invoked. I find no such reasons in this case justifying invocation of the revisional jurisdiction. This petition deserves to be dismissed. 5. This Revision Petition is accordingly dismissed and the impugned order is upheld. (R.BASANT, JUDGE) rtr/-