IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 RPFC.No. 398 of 2010() ----------------- MC.227/2008 OF FAMILY COURT, KOZHIKODE ................. PETITIONER / RESPONDENT : -------------------------------------------- A.D.DIVAKARAN, S/O. LATE DAMODARAN, AGED 44 YEARS, ARAKKAPARAMBIL HOUSE, P.O.KOLERI, KRNICHIRA-VIA, POOTHADI VILLAGE, BATHERI TALUK, WAYANADU-DISTRICT, PIN- BY ADV. SRI. K. RAKESH ROSHAN RESPONDENTS / PETITIONERS : ----------------------------------------------- 1. REGI, D/O. KRISHNANKUTTY, AGED 39 YEARS, KANIYAMKUDIYIL HOUSE, POST-KANNOTH, KODANCHERY, KOZHIKODE-DISTRICT, PIN - 673 580. 2. DILJITH, AGED 8 YEARS, (MINOR) REPRESENTED BY REGI, (MOTHER) KANIYAMKUDIYIL HOUSE, POST-KANNOTH, KODANCHERY, KOZHIKODE-DISTRICT, PIN - 673 580. R1 BY ADV. SRI.SUNNY MATHEW FOR R1 THIS REV.PETITION (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C) No.398 OF 2010 -------------------------------- Dated this the 2nd day of August 2011 ORDER Revision is by the husband challenging the order of maintenance passed in favour of the wife in a proceeding under Section 125 of the Code of Criminal Procedure, by the learned Judge, Family Court, Kozhikode. The wife with her child, moved the aforesaid petition seeking maintenance at the rate of Rs.3,000/- to her and Rs.2,500/- to the child, per month, alleging neglect by the husband and her lack of means for sustenance in life. She had moved another petition claiming refund of money towards the value of her gold ornaments alleged to have been taken and deprived of by the husband. Both these petitions, after being tried together, were disposed by the learned Judge, Family Court in favour of the wife directing the husband to pay maintenance at the rate of Rs.1,250/- to her and Rs.750/- to the child per month, and also passing a decree allowing her claim for refund of money towards the gold ornaments sought for by her in the original petition. Against decree granting refund of money towards the gold ornaments, it is submitted, the petitioner has filed an appeal and it is pending consideration. The R.P(F.C) No.398/2010 - 2 - challenge in the revision is only against the quantum of maintenance awarded to the wife and not of the child. The maintenance awarded to the wife at the rate of Rs.1,250/- per month is excessive and unreasonable is the case of the husband in the revision seeking for its modification by way of reduction. Resisting the claim of the wife, he has contended that the wife is employed in a photo studio and, thus, collecting monthly income of Rs.4,500/- from such vocation. Indisputably, no material was placed before the court to sustain that contention to resist the claim of the wife. Her case that the petitioner/husband is possessed of 40 acres of land with 45 rooms situate in Sultan Batheri town, as such, was also found not proved by the materials tendered in the case, by the learned Judge, Family court. However, on the materials placed, it was found that the family of the revision petitioner/husband is having 12 acres of land, and also in possession of 45 rooms with one of such rooms occupied by a Scheduled Bank, State Bank of Travancore. Though the petitioner contended that the land is barren and he is not getting any income from the buildings towards rent or otherwise, on the totality of the facts and circumstances presented, the learned Judge came to the conclusion that he is possessed of sufficient income to pay maintenance at the rate of Rs.1,250/- to his wife and Rs.750/- to the child per month. R.P(F.C) No.398/2010 - 3 - 2. The limited question to be considered in the revision is whether there is any infirmity in the conclusion formed by the Judge, Family Court, to hold that the petitioner/husband is possessed of sufficient income to provide the quantum of maintenance in favour of the wife at the rate of Rs.1,250/-, on the materials placed in the case. Whatever be the defence canvassed by the accused contending that he is not in possession of any land, but, only his family, and also noncollecting income from the buildings, which, admittedly are under the enjoyment of his family, there is nothing on record to show that he is not a healthy and able bodied person capable of earning sufficient income for his livelihood and also that of his divorced wife and child. He is statutorily bound to maintain his wife, even by exerting himself to physical labour, where it is shown that the wife is not possessed of sufficient means for livelihood. Though he set up a plea that the wife has income and she cannot claim maintenance from him, he has failed to establish such defence. Having regard to the fact that the quantum of maintenance now fixed in favour of the wife, if calculated daily, would be less than Rs.50/-, I do not find any impropriety, leave alone any infirmity, in the quantum so fixed by the learned Judge, Family Court. There is no merit in the revision, and it is dismissed. vdv S.S.SATHEESACHANDRAN, JUDGE