IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 RPFC.No. 358 of 2008() ---------------------- MC.63/2006 of FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER(S): RESPONDENT: --------------------------------------------------------------- SUDHEER I.P., AGED 38 YEARS, S/O.LATE SREEDHARAN, EDAYATTUCHALIL HOUSE, NADUVALLUR AMSOM AND DESOM, P.O.KAKKOOR, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.RAMKUMAR SMT.ANITHA RAMKUMAR RESPONDENT(S): PETITIONERS: ------------------------------------------------- 1. ANASREE M.A.,AGED 34 YEARS, D/O. APPU, MANKUNI HOUSE, KUNNAMANGALAM AMSOM AND DESOM, M.I.E.KUNNAMANGALAM,KOZHIKODE PIN 673 571. 2. ABHI.S.KRISHNA (MINOR) D.O. B 24.7.00 REP. BY MOTHER AS GUARDIAN (IST RESPONDENT) SAME ADDRESS. 3. SREEPRIYA, (MINOR) D.O. B 11.06.04 ,REP. BY MOTHER AS GUARDIAN (IST RESPONDENT) SAME ADDRESS. ADV. SRI.A.V.M.SALAHUDIN FOR R1 TO R3 SRI.A.VISWANATHAN FOR R1 TO R3 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 01/12/2008 ALONG WITH RPFC NO.359 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.Nos. 358 & 359 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2008 O R D E R These revision petitions are filed by the rival contestants in a proceedings before the Family Court under Section 125 Cr.P.C. The parties are being referred to as the claimants and respondent. 2. The claimants are the wife and children of the respondent. The respondent is employed in the Armed Force. The wife and children are residing at their native place. The claimants contended that the respondent having sufficient means is refusing and neglecting to maintain them. The respondent took up a contention that though the marriage is admitted, paternity of one of the two children is disputed. 3. The parties went to trial on these contentions. The claimant/wife examined herself as RW1, whereas the respondent examined himself as PW1. Exts.B1 to B8 were marked on the side of the claimants. Ext.X1 report of the D.N.A. test was also marked. The said report shows that the respondent is the biological father of the third claimant, child. R.P.F.C.Nos. 358 & 359 of 2008 2 4. The learned Judge of the Family Court took the view that the claimants are entitled to claim maintenance. The learned Judge came to the conclusion that the claimant/wife is entitled for an amount of Rs.1,500/- p.m. and the two children are entitled for an amount of Rs.750/- each p.m. 5. Both parties contend that they are aggrieved by the order. What is the grievance? The respondent/husband contends that the award of maintenance to the wife is not justified at all as she is not a woman unable to maintain herself. The claimants contend that the quantum of maintenance awarded is not adequate and that at any rate the Family Court erred grossly in not alertly exercising the discretion to direct payment of maintenance from the date of the petition. 6. I shall first consider the challenge by the respondent. We have satisfactory evidence to show that the wife is well qualified. She was admittedly employed in a school. She was getting a salary of Rs.2,000/- p.m. According to her she had left that employment and had subsequently joined another school and was admittedly getting an income of Rs.2,000/- p.m. No better evidence was adduced by either R.P.F.C.Nos. 358 & 359 of 2008 3 side to show the precise income derived by the wife. Ext.B5 salary certificate, which relate to her previous employment, shows that she was getting an amount of Rs.2,000/- According to the claimants the respondent, employed as a Havildar in the Armed Force, gets an amount of Rs.10,000/- p.m. Whereas the respondent contended that after effecting deductions he gets only an amount of Rs.4,600/- p.m. Significantly the respondent did not choose to produce any document to show what his actual salary and what the carry home salary were. 7. The learned Judge of the Family Court in these circumstances realistically took note of the income which the wife has from her employment. Inspite of such income, the learned Judge felt that an amount of Rs.1,500/- p.m. can be awarded to the wife and an amount of Rs.750/- each p.m. to the children. The learned counsel for the claimants contends that the respondent now has a total monthly income exceeding Rs.20,000/- The learned counsel for the respondent on the contrary contends that the wife is getting a much higher income than Rs.2,000/- R.P.F.C.Nos. 358 & 359 of 2008 4 8. Be that as it may, the evidence presently available clearly shows that the wife gets an income of Rs.2,000/- p.m. No better evidence has been adduced by either side. The indications available about the income of the husband as spoken to by the wife can safely be accepted and that indicates that he gets an income of Rs.10,000/- p.m. He could easily have produced cogent documents to dispute this assertion if as a matter of fact he does not gets this amount as salary. 9. In any view of the matter, I am not persuaded to agree that the award of maintenance for the wife or the quantum of maintenance fixed for the wife is in any way vitiated as to justify or warrant the invocation of the revisional jurisdiction of superintendence and correction. 10. The claimants contend that the quantum of maintenance awarded is inadequate. But in the facts and circumstances of this case, in the absence of specific better data, I am not persuaded to invoke the revisional jurisdiction to interfere with the quantum fixed by the Family Court. At any rate, with the available inputs, the quantum fixed does not warrant interference. R.P.F.C.Nos. 358 & 359 of 2008 5 11. However, I do note that the learned Judge of the Family Court has not pointedly applied his mind on the question whether maintenance deserves to be ordered from the date of the petition or the date of the order. Under law a discretion is vested in the Family Court to direct payment of maintenance from the date of the petition or the date of the order. That discretion must be exercised judicially and judiciously taking into account all relevant circumstances. 12. Marriage is admitted. Paternity of one child is admitted and the other is disputed. Birth of the child was during the currency of the marriage. DNA test also confirms the presumption under section 112 of the Evidence Act. In these circumstances the liability of the respondent to pay maintenance could not possibly be disputed. In these circumstances the discretion to award payment of maintenance must have been exercised from the date of the petition and not from the date of the order. In having directed payment of maintenance only from the date of petition, I have no hesitation to agree that the learned Judge of the Family Court has abdicated the jurisdiction which he has R.P.F.C.Nos. 358 & 359 of 2008 6 under Section 125 Cr.P.C. The challenge on that ground is bound to succeed. The objection raised deserves to be upheld. 13. In the result: a) R.P.F.C. 359 of 2008 filed by the wife is allowed. The claimants are found entitled for payment of maintenance from the date of the petition i.e. 30.3.2006. Needless to say, credit shall be given to the amounts, if any, paid during the pendency of the proceedings through court. b) R.P.F.C.. 358 of 2008 filed by the husband is dismissed. c) I may hasten to observe that I have taken the decision on the basis of materials which are presently available and placed before the learned Judge of the Family Court. It shall be open to both parties to move the learned Judge of the Family Court by filing appropriate application under Section 127 Cr.P.C. if they have a case that the order of maintenance granted deserves variation on the basis of the state of affairs which are in existence now. (R. BASANT) R.P.F.C.Nos. 358 & 359 of 2008 7 Judge tm