IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 RPFC.No. 192 of 2009() ---------------------------- AGAINST ORDER DTD 22.11.2008 IN MC NO.569/2008 ON THE FILES OF FAMILY COURT MALAPPURAM. .................... REVISION PETITIONER/RESPONDENT: --------------------------------------------- ABDUL GAFOOR, 36 YEARS, S/O. ABDULLAKUTTY, ALYAMAKKANAKATHU HOUSE, MULLA ROAD, KADAVANADU AMSOM, PUTHUPONNANI DESOM, PONNANI SOUTH P.O. BY ADV. MR.V.RAJENDRAN RESPONDENT(S)/PETITIONERS: ------------------------------------- 1. FATHIMA, 34 YEARS, D/. MOOSA, CHAKKANTAKATHU HOUSE, MULLA ROAD, KADAVANADU AMSOM, PUTHUPONNANI DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. 2. GAFEEL, 14 YEARS (MINOR). 3. FARSEEL, 12 YEARS (MINOR). 4. FARIS, 11 YEARS (MINOR). 5. FARSANA, 10 YEARS (MINOR). (MINOR RESPONDENTS 2 TO 5 ARE REPRESENTED BY GUARDIAN MOTHER 1ST RESPONDENT) THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ R.P.(FC) NO. 192 OF 2009 ---------------------------------------- Dated this the 3rd day of June, 2009 ORDER Heard counsel for petitioner. This revision is in challenge of the order of maintenance passed by the Family Court, Malappuram in favour of respondents 1 to 5, admittedly wife and children of the petitioner. Petitioner married respondent No.1 in the year, 1993. Four children were born in the wedlock. They are now in the age group of 13 to 9 years and studying in schools and madrassa. Respondents alleged that petitioner subjected them to cruelty and harassment, neglected and refused to maintain them. They claimed maintenance at the rate of Rs.3,000/- per month to respondent No.1 and Rs.1,500/- each per moth to respondent Nos. 2 to 5. Petitioner claimed that he is a waiter in M/s.Ceylon Bake House, Ernakulam earning only Rs.100/- per day. He denied the allegation of cruelty towards respondent No.1. Both sides adduced oral evidence. Learned judge found that it is not likely that a lady aged 33 years with four children in the age group of 13-9 years would prefer to stay R.P.(FC)No.192/2009 2 away from her husband without valid reason particularly when they have no means of livelihood. Court below accepted the evidence of respondent No.1 as PW1 and found that the petitioner neglected and refused to maintain the respondents. That finding is entered on a proper appreciation of the evidence. PW1 has given evidence about the ill-treatment, neglect and refusal to maintain at the hands of the petitioner. As the court below also pointed out, it is unlikely that without any valid reason a lady aged 33 years having no means of livelihood, would prefer to keep away from her husband with four children. Nothing is brought out to disbelieve the evidence of PW1. There is no reason to interfere with the finding of the court below that respondent No.1 is entitled to separate residence and maintenance. So far as respondents 2 to 5 are concerned, irrespective of the property of their custody with respondent No.1, petitioner is bound to maintain them. 2. So far as quantum of maintenance is concerned, Rs.1200/- was awarded to respondent No.1 aged 33 years and Rs.700/- each per month was awarded to respondent Nos.2 and 3 aged 13 and 11 years respectively. The amount R.P.(FC)No.192/2009 3 awarded to respondent No.4 aged 11 years is Rs.600/- while what is awarded respondent No.5 aged 9 years is Rs.500/-. I am not inclined to think that the amount awarded is a luxury. It only takes care of the basic necessities of life such as food, clothing, shelter etc. Respondents 2 to 5 are students. Their educational expenses are also to be met. 3. Coming to the paying capacity of the petitioner, it is admitted that he is employed in Ceylone Bakes House, a first grade hotel at Ernakulam. He is not an ordinary employee there. He has long experience to his credit. It also came out in evidence that in the meantime, he had gone abroad for work for some time. Then he resumed employment in M/s. Ceylone Bake House. It is in the circumstances that court below was not inclined to accept his contention that his income per day is only Rs.100/-. It was found that he could earn atleast Rs.300/- per day by way of tips and salary. At any rate, petitioner is an able bodied man now aged 35 years and hence he must be capable of earning. Present day labour charges also can be taken into account which is anything not less than Rs.250/- per day. I am not satisfied that the amount awarded is beyond the paying capacity of the petitioner. There is no R.P.(FC)No.192/2009 4 reason why the revisional court should interfere with the order under challenge. Revision petition is dismissed. THOMAS P. JOSEPH, JUDGE Acd