IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 RPFC.No. 18 of 2008() --------------------- MC.47/2006 of FAMILY COURT, THIRUVALLA .................... : REVN. PETITIONER/CR.PETITIONER ----------------------------------------------- SUNIL J.THOMAS, S/O. C.J.JOHN, CHOLAKATHU CHIRAMEL VEEDU, KARUVELIPPADI, MATTANCHERRY VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.R.GOPAN SRI.K.RAJESH KANNAN RESPONDENTS: PETITIONERS & STATE -------------------------------- 1. CHRISTINA MATHEW @ CHRISTINA SUNIL, D/O. K.K.MATHEW, KONALIL VEEDU, KOTTANADU P.O., KOTTANADU MURI, PERUMPETTY VILLAGE, MALLAPPALLY TALUK. 2. SHERIN MARIYAM SUNIL (MINOR), REPRESENTED BY THE 1ST RESPONDENT, THE MOTHER. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 31/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.18 of 2008 ---------------------------------------- Dated this the 31st day of January 2008 O R D E R This revision petition is directed against the direction issued by the Family Court under Section 125 Cr.P.C to the petitioner to pay maintenance at the rate of Rs.1,500/- and Rs.1,200/- per month to the claimants, his wife and child in addition to the direction to pay an amount of Rs.10,000/- per annum towards the educational expenses of the child. 2. Marriage is admitted. Paternity is admitted. Separate residence is admitted. It is stated categorically that the petitioner is not willing to take the claimant/wife along with him and maintain her. In these circumstances, as rightly pointed out by the learned counsel for the petitioner, only three questions survive for consideration. They are: a. Is the petitioner having sufficient means? b. Are the claimants unable to maintain themselves? c. What, if any, must be fixed as the quantum of maintenance payable? 3. Before the court below, the claimant/wife and the petitioner examined themselves as PW1 and CPW1. Exts.A1 to R.P.F.C.No.18/2008 2 A3 were marked on the side of the claimants. 4. The learned Judge of the Family Court came to the conclusion that the claimants are entitled for maintenance and issued the directions referred above. 5. The learned counsel for the petitioner has been heard in detail. The learned counsel for the petitioner has made available to the court the depositions of PW1 and CPW1. The learned counsel for the petitioner contends that the learned Judge of the Family Court has not entered any specific findings on points 1 and 2 referred above. I do find merit in that contention in the sense that no specific points have been raised and no specific findings have been entered. 6. But the crucial question for consideration of this court is whether, in the facts and circumstances of this case, revisional jurisdiction of superintendence and correction can and deserve to be invoked to interfere with the impugned order. The court below has considered the question elaborately point No.2 as to what amount must be ordered to be paid. In considering that both the points referred above have been considered by the learned Judge by necessary implication. I am in ready agreement with the learned counsel for the petitioner that R.P.F.C.No.18/2008 3 ideally these two points must have been raised separately and answered specifically. But the mere fact that they have not been so raised separately and answered specifically, cannot persuade me ipso facto to invoke the revisional jurisdiction of superintendence and correction. It is not now trite that any and every error, inadequacy and insufficiency in an order passed by a subordinate court shall not persuade this court to invoke the revisional jurisdiction of superintendence and correction. Has there been any gross error committed by the courts below? Does such error, if any, result in miscarriage of justice? These are the questions this court will consider when requested to invoke the revisional jurisdiction of superintendence and correction. 7. The petitioner claims that he has no sufficient means at all. The lady, his wife, gave evidence about his income and means. Of course, it was only the oral evidence tendered by her and she was not in a position to produce any documentary evidence to show the employment and quantum of income of the petitioner. But the plight of an estranged wife who resides separately called upon to prove the income of the husband must be borne in mind by any court to call upon translate the humane compassion under Section 125 Cr.P.C into tangible relief. So R.P.F.C.No.18/2008 4 reckoned, I find the learned Judge of the Family Court had considered all the relevant inputs. The petitioner is a person who has acquired an M.Com qualification. He was earlier employed in Gulf. His father was running a business establishment. The visiting card Ext.A3 gives an idea about the petitioner's vocation. The learned Judge noted that the claimant uses a mobile phone. The learned Judge took note of the fact that he has a car. I am certainly of the opinion that these inputs must necessarily persuade any ordinary prudent human being to come to the conclusion that the petitioner is having sufficient means and he is not a person who has no means at all to support his wife and child. The materials convincingly point to the fact that a finding must have been specifically entered that the petitioner is having sufficient means. The mere omission to raise the point separately and to answer the point specifically cannot confer on the petitioner any advantage. 8. So is the contention regarding the ability/inability of the claimants to maintain themselves. The lady asserted that she has no employment. The lady asserted that though earlier there were some deposits in her name, they are not now available. No better material whatsoever is brought out in the evidence in the R.P.F.C.No.18/2008 5 cross-examination of the claimant/PW1 or in the chief examination of the petitioner as CPW1 to indicate or suggest that the lady is able to maintain herself. The only specific contention raised in the chief examination of the petitioner is that PW1 has fixed deposits. What that amount is or its details are not made available. I am, in these circumstances, of the opinion that notwithstanding the omission to raise a specific point and to answer the same in the affirmative about the ability/inability of PW1 to maintain herself, the materials available and the findings entered clearly show that the said aspect was also considered by the learned Judge and necessary inferences were drawn. 9. We now come to the quantum of maintenance awarded. Rs.1,500/- per month to the claimant/wife is, in any view of the matter, found to be absolutely justified. The petitioner does not assail the award of Rs.1,200/- per month to his child. But, according to him, the direction to pay an annual amount of Rs.10,000/- for the educational expenses of the child is unjustified. PW1 had given evidence on this aspect. Ext.A1 series receipts have been produced which give an idea about the expenditure which has to be incurred in connection with the R.P.F.C.No.18/2008 6 education of the child. In these circumstances, I find absolutely nothing improper or perverse in the direction of the learned Judge to pay additional amount of Rs.10,000/- annually to meet the educational expenses of the child. It is true that a separate claim for annual payment was not made by the claimants. But it must be seen that so far as the child is concerned, an amount of Rs.7,000/- per month [Rs.84,000/- annually] was claimed as monthly maintenance. The amount presently awarded is only Rs.24,400/- [Rs.10,000/- annually and Rs.14,400/- (12 x Rs.1,200) by way of monthly payments]. The contention that the amount awarded is not covered by pleadings cannot also in these circumstances succeed. 10. Having considered all the relevant inputs, I find no merit whatsoever in the challenge raised in this revision petition. The same fails. This revision petition is accordingly dismissed. (R.BASANT, JUDGE) jsr R.P.F.C.No.18/2008 7 R.P.F.C.No.18/2008 8 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006