IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 RPFC.No. 32 of 2008() --------------------- MC.167/2001 OF FAMILY COURT, ERNAKULAM .................... : REVISION PETITIONER/RESPONDENT ----------------------------------------------- SIVAN E.K., AGED 39 YEARS, S/O.KOCHAYYAPPAN, PADINJARE VEETUMURI, KEDAMANGALAM SOUTH, EZHIKKARA P.O., NORTH PARUR. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS: PETITIONER ----------------------- MINI, AGED 33 YEARS, W/O.SIVAN, KALATHIPARAMBIL, CHIRAKKAL, VARAPUZHA, ERNAKULAM, NOW RESIDING AT MATTUMMEL HOUSE, KOONAMMAVU P.O. PIN - 683 518. BY ADV. SMT.SANDHYA RAJU SMT.RASHMI RAMESH SMT.P.A.JAIMOLE PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.32 of 2008 ---------------------------------------- Dated this the 8th day of February 2008 O R D E R This revision petition is directed against an order issued under Section 125 Cr.P.C to the petitioner to pay maintenance at the rate of Rs.600/- per mensum to the claimant, admittedly his wife. 2. Marriage is admitted. Separate residence is also admitted. The wife contended that the husband is living in adultery. The husband, in the course of his examination before court as RW1, admitted that he has begotten a child in his relationship with one Usha who was a neighbour. The allegation of illicit intimacy against the petitioner is thus admitted by him as RW1. 3. The petitioner offered that he is willing to maintain the wife on condition that she lives with him. He, at the same time, raised a contention that she is living in adultery. He raises a further contention that the claimant/wife is not a woman unable to maintain herself. The parties went to trial on these contentions. The claimant examined herself as PW1. A doctor R.P.F.C.No.32/2008 2 was examined as PW2 to prove the birth of the child for the petitioner in the said Usha. She examined another witness as PW3 on her side. Ext.X1 was also marked on her side. 4. The petitioner examined himself as RW1. The child born to him and PW1 as RW2 and yet another witness as RW3 were examined in an attempt to prove adultery. The learned Judge of the Family Court came to the conclusion that the claimant has succeeded in establishing that she is entitled for maintenance and accordingly proceeded to issue the impugned order directing payment of maintenance from the date of the petition. 5. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner has been heard in detail. The learned counsel for the petitioner, first of all, contends that the finding that he has an adulterous relationship with one Usha is not established satisfactorily. Less said about this contention the better. The petitioner as RW1 was constrained to admit in the course of cross-examination that the said Usha given birth to a child of which he is the father. In the light of that admission, this contention need not detain this court any further. R.P.F.C.No.32/2008 3 6. Secondly, it is contended that the claimant/wife is living in adultery. What is the evidence? The learned counsel for the petitioner contends that the petitioner had produced certain documents which would show that his wife used to write letters to some young men in the neighbourhood. The wife denied those letters. Those letters have not been formally proved and the petitioner, who produced those documents, was unable to formally introduce them in evidence in accordance with law. How did he receive them? From whose custody did he get it? All questions were not satisfactorily explained. He wanted the letters to be sent to the expert for scientific comparison. The learned Judge of the Family Court indulgently allowed the said request also; but on condition that the petitioner must pay the interim maintenance which had been directed to be paid. The petitioner challenged that order unsuccessfully by filing a writ petition before this court. Thereafter also he did not make the payments and therefore the letters were not sent to the expert. No attempt was made otherwise to formally introduce those letters into evidence. RW3 was examined to prove the said adulterous relationship. Even the attempt was only to show that the claimant/wife has been R.P.F.C.No.32/2008 4 talking to some young men of the neighbourhood. That cannot at all be reckoned as even an attempt to prove adultery. The said contention raised must also hence fail. 7. There was a contention that the claimant/wife is not unable to maintain herself. She tendered evidence as PW1. It is by now trite that even the fact that the wife, after estrangement and separation, has been attempting to do some work to keep the body and soul together, is not a reason to come to a conclusion that she is not unable to maintain herself. There is significant absence of evidence to show that she is not a woman unable to maintain herself. 8. The contention is raised before me that the wife has certain bank accounts in which the petitioner had deposited amounts and which amounts were withdrawn by her. No satisfactory evidence has been introduced in support of that contention. The said contention must also hence fail. 9. Lastly and finally it is contended that the quantum of maintenance awarded is excessive. The amount ordered is only Rs.600/- per mensum. I need not discuss this issue any further. The amount ordered is hardly sufficient for the lady to keep body and soul together. In any view of the matter, the challenge on R.P.F.C.No.32/2008 5 the ground that the amount ordered is excessive must also be rejected. 10. It is impassionately prayed that the revision petition may be admitted. To consider the above contentions, I believe that it will be harsh, nay cruel, to admit this revision petition and order notice to the petitioner to come all the way to the High Court, to engage a counsel and to contest the proceedings. No worthwhile contention has been raised before me which can persuade me to admit this revision petition and extend an unnecessary and vexatious invitation to the claimant/wife to come to this court to argue this revision petition. 11. The learned counsel for the petitioner contends that the court below has erred grossly in directing payment of maintenance from the date of the petition. The order must have been only to pay maintenance from the date of the order of maintenance, contends the learned counsel for the petitioner. The maintenance case was filed as early as in 2001 and the petitioner will be forced to face a huge liability now, it is contended. The learned counsel for the petitioner draws my attention to the stipulation of Section 125(2) Cr.P.C which states that the amount of maintenance shall be payable from the date of R.P.F.C.No.32/2008 6 the order or if so ordered, from the date of the application for maintenance. The learned counsel for the petitioner contends that the normal rule must be to award maintenance from the date of the order. 12. A reading of the impugned order clearly shows that though an interim direction for payment of maintenance was ordered, the petitioner had not complied with that order. Such a petitioner cannot be heard to contend that the maintenance ordered should take effect only from the date of the order. That will be conceding a premium for persons who successfully protract the proceedings and who, with impunity, do not make payments of amounts ordered as an interim maintenance. This contention cannot also succeed. 13. It follows that the revision petition cannot succeed. The same is dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge R.P.F.C.No.32/2008 7 R.P.F.C.No.32/2008 8 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006