IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN SATURDAY, THE 20TH AUGUST 2011 / 29TH SRAVANA 1933 RPFC.No. 165 of 2010() ---------------------- MC.18/2010 on the file of the Family Court, Kollam .................... REVISION PETITIONER/COUNTER PETITITIONER ------------------------------------------------------------ NAZIM, AGED 50 YEARS, S/O.ABDUL AZIZ, OPERATOR, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, KOLLAM. BY ADV. SRI.PRAVEEN K. JOY SRI.C.SINOY RESPONDENT(S): PETITIONER ------------------------- RUKIA NAZIM, AGED 43 YEARS, D/O.SAINABA, SHAH MANZIL, BEACH NORTH, KOLLAM. ADV. SRI.B.MOHANLAL FOR R1 SMT.P.S.PREETHA FOR R1 SRI.SAIJU S. FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 20/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1 : A TRUE PHOTOCOPY OF THE ORDER IN O.S NO.156/2005 ON THE FILE OF FAMILY COURT, KOLLAM. ANNEXURE A2 : A TRUE PHOTOCOPY OF THE LETTER DATED 30-04-2010. ANNEXURE A3 : A TRUE PHOTOCOPY OF the CMP NO.13/2009 OF THE FAMILY COURT, KOLLAM. ANNEXURE A4 : A TRUE PHOTOCOPY OF THE NOTICE REGARDING THE CMP NO.13/2009. RESPONDENT'S ANNEXURES: NIL //True Copy// P.A to Judge vdv S.S.SATHEESACHANDRAN, J -------------------------------------- R.P(F.C). No.165 OF 2010 ----------------------------------------- Dated this the 20th day of August 2011 ORDER The revision is by the husband, challenging the order of the Judge, Family Court, Kollam in a proceeding under Section 125 of the Code of Criminal Procedure directing him to pay maintenance at the rate of Rs.2,500/- per month to the wife. 2. Status of the parties as husband and wife is not under challenge. Admittedly, the spouses have two children, both of them have now become majors. Where as the petitioner/husband has a case that both are presently employed, according to the wife, the daughter, after marriage, is still studying for Post Graduate course. Whatever that be, in considering the legality, propriety and correctness of the order passed by the Judge, Family Court, within the limited and narrow compus of the revisional jurisdiction, the cardinal question to be looked into is whether such order suffers from any infirmity warranting interference by this court. 3. The learned counsel for the revision petitioner would submit that previous to the passing of the impugned order under Section 125 of the Code of Criminal Procedure, the wife had filed a suit and obtained an exparte decree, by which he had been directed to pay a sum of Rs.700/- per month as maintenance to her. In the suit, the R.P.F.C. No.165/2010 2 claim for maintenance for the children who were then minors were also involved. Those children were also granted maintenance at the rate of Rs.700/- each per month. Towards realising the arrears of maintenance so awarded to the wife and children as per the decree passed by the civil court, it is the submission of the counsel, a sum of Rs.3,500/- every month, over a period of time, has been recovered from his salary by the disbursing officer pursuant to orders passed by the court. To substantiate the submission so made, Annexure A2 is relied on, which disclose that recovery was effected for a period of four months. The wife had initiated another proceeding under the Protection of Women from Domestic Violence Act, in which also she claimed maintenance against him, is the further submission of the counsel. She is now in occupation of a quarters earmarked and alloted to the husband as an employee of Water Authority and to that extent, she is taken care of by him, is the further submission of the counsel urging that a sum of Rs.1,840/- per month is being deducted from his salary towards the rent of such quarters. Now he has to pay and clear off the arrears awarded under the decree passed by the civil court and also the maintenance now fixed and directed to be paid under the impugned order by the Judge, Family Court, is the submission of the counsel stating that there is a total change of circumstance after passing of the order with the son of the R.P.F.C. No.165/2010 3 parties, an M.B.A Degree holder, getting employment in Dubai. That son is sending a sum of Rs.20,000/- per month to the mother is the case of the petitioner. So much so, at any rate, the quantum of maintenance awarded in favour of the wife is liable to be reduced, taking note of the circumstances pointed out, is the submission of the counsel. On the other hand, the learned counsel for the respondent/wife would contend that the husband has already moved an application before the court under Section 127 of the Code of Criminal Procedure highlighting the circumstances now canvassed before this court, seeking modification of the quantum of maintenance awarded. If at all there is any change of circumstances, that is a matter that could be canvassed in the proceedings already initiated, which is pending consideration before the Judge, Family Court, is the further submission of the counsel. At any rate, in passing the maintenance order, the Judge, Family Court, it is submitted by the counsel, has taken into account the amount awarded under the decree towards the wife directing its adjustment in the quantum fixed. When that is so taken care of, it is the submission of the counsel, no further reduction or modification of the quantum fixed is called for. The materials on record would indicate that at the point of time when the order was passed, the petitioner earned a sum of Rs.16,000/- as salary, employed as a pump operator R.P.F.C. No.165/2010 4 in the Water Authority. Now after the recent pay revision, his emoluments have been increased and he is presently getting not less than Rs.20,000/-, is the submission of the counsel. If at all there is a change of circumstances entitling the husband to claim reduction, that is a matter to be examined on the basis of the materials produced by the Judge, Family Court in the pending proceedings initiated on the petition filed by the husband, is the submission of the counsel for the husband. 4. Going through the order passed by the Judge, Family Court, with reference to the submissions made by the counsel on both sides, I find that after meticulous consideration of the facts and circumstances involved and also the materials placed, the petitioner/husband has been directed to pay a sum of Rs.2,500/- as maintenance to the wife. While passing that order, fixing the quantum of maintenance as stated above, the learned Judge has also taken note of the decree passed previously, by which the petitioner had been directed to pay a sum of Rs.700/- per month to his wife. The amount so awarded in the decree is directed to be adjusted, and thus given credit as well in the impugned order fixing maintenance at the rate of Rs.2,500/- per month, allowing the wife to recover the sum from the date of filing of the petition, 25-01-2008. In case the petitioner/husband has paid any amount under the R.P.F.C. No.165/2010 5 decree passed by the civil court, at the rate of Rs.700/- per month, from the aforesaid date, naturally he is entitled to adjust that amount in the quantum fixed by the Magistrate. So far as the accommodation provided to the wife, which is canvassed as a circumstance to contend that the quantum of maintenance awarded call for reduction, I find, both parties have not produced any material to show what is the rent collected for the quarters from the petitioner/husband by his employer. Further more, having regard to the emoluments collected by the petitioner, which at the point of time of disposal of the petition is shown to be more than Rs.16,000/-, I find, the quantum fixed by the learned Judge, Family Court at the rate of Rs.2,500/- to the wife can never be considered as excessive and unreasonable. The escalation of price rise of commodities has to be taken into account in fixing the quantum of maintenance, of course with reference to the income potentiality of the petitioner/husband. Children of the spouses, both son and daughter, have got employment, and the son is now providing maintenance to the mother, are not grounds enabling the husband to relieve him from the statutory liability to maintain the wife. So much so, that plea raised by the counsel for the petitioner seeking for modification of the quantum of maintenance cannot be accepted. So far as the change of circumstance canvassed by the counsel, as rightly pointed R.P.F.C. No.165/2010 6 out by the learned counsel for the respondent, such question can be thrashed out in the petition filed by the husband before the Family Court, which is stated to be still pending consideration. 5. A sum of Rs.23,000/- at the rate of Rs.1,000/- per month as per the orders passed by this court, it is submitted, has been paid to the wife during the pendency of the revision. Any amount so paid shall be given credit to in the maintenance due to the wife. The learned counsel seeks for some time to pay the arrears of maintenance due with a request that the execution of warrant against the petitioner may be directed to be kept in abeyance for a short period. Considering the submissions made, execution of warrant, if any, issued against the petitioner is directed to be kept in abeyance for a period of two months from today. Reserving the right of the petitioner to canvass whatever grounds available, for modification of the quantum of maintenance if there is change of circumstance, in the pending proceedings, the revision is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge R.P.F.C. No.165/2010 7