IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 3RD MARCH 2008 / 13TH PHALGUNA 1929 RPFC.No. 353 of 2007() ---------------------- MC.239/2007 OF THE FAMILY COURT, MALAPPURAM .................... APPELLANT/ACCUSED: ----------------------------------- SAINUL ABID, S/O.ABDULLA, KAMMAKKANTE PURAKKAL HOUSE, PACHATTIRI AMSOM, PARAVANNA DESOM. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: PETITIONERS AND STATE: ----------------------------------- 1. KHOULATH, AGED 25 YEARS, D/O.ABDULLA, KAMMAKKANAKATH HOUSE, MANGALAM AMSOM DESOM, KUTTAI P.O., TIRUR TALUK. 2. FABINA RAMSI, AGED 3 YEARS (MINOR) 3. ABOOBACKER, AGED 1 1/2 YEARS(MINOR). 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.C.V.MANUVILSAN SRI.P.K.KHALEEMUDHEEN SRI.DARSAN SOMANATH THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 03/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 353 of 2007 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of March, 2008 O R D E R ApplicationThis revision petition is directed against an order passed under Section 125 Cr.P.C. obliging the petitioner to pay monthly maintenance at the rate of Rs.1300/-, Rs.700/- and Rs. 500/- respectively to his wife, aged about 25 years, and his children aged 3 years and 1 ½ years. The wife is now pregnant also for the third time. 2. Marriage is admitted. Paternity of the claimant children is admitted. Separate residence is also admitted. The husband offered to maintain the claimant wife on condition that she lives with him. Interestingly, he also set up a defence that the child in her womb is not fathered by him. He took up a further contention that the wife has sufficient means. She is employed as a tailor, it was contended. The petitioner is admittedly an autorikshaw driver. In these circumstances the learned Judge of the Family Court correctly addressed himself to the three questions raised. R.P.F.C.No. 353 of 2007 2 3. First one is whether the claimant wife is a woman unable to maintain herself. Eventhough claims were made that the claimant is a tailor, no evidence was produced. The Judge of the Family Court rightly came to the conclusion that the wife is shown to be a woman unable to maintain herself. The second question that came up for consideration was whether the husband is liable to pay separate maintenance to the wife. The husband had sent a notice to the wife calling upon her to cohabit with him. She had received the notice, but not replied to it. The learned Judge of the Family Court decided the issue in favour of the claimants basically on the test of possibilities and because of one undisputed conduct on the part of the petitioner. The wife was two months pregnant. The petitioner had cruelly raised a contention that the child in the womb is not his. That contention was a contention which was not seriously raised as can be seen from the fact that no semblance of evidence was produced to prove, probabilise or even indicate the truth of that contention. The learned Judge of the Family Court took note of the probability that a hapless wife, who is not shown to have any one to look after her, was unlikely to reside R.P.F.C.No. 353 of 2007 3 separately from her husband unless valid reasons are there. The wife had reasons to urge, whereas the petitioner is ignorant about the reasons to explain separate residence. The crucial conduct of the petitioner denying the paternity of the child in womb was reckoned rightly, according to me, as an indication of matrimonial cruelty inflicted on the claimant wife. The second contention raised was also rightly considered and answered by the learned Judge, I conclude. 4. Lastly and thirdly a contention is raised that the quantum of maintenance awarded is excessive. The petitioner is admittedly an autorikshaw driver. There are various other disputes raised as to whether the autorikshaw belongs to him or not. There is also a dispute as to whether he has other alternative source of income. The learned Judge, because of paucity of evidence, confined himself to the admitted source of income of the petitioner - from his employment as a driver. The learned Judge took the view that at any rate a driver like the petitioner can safely have assumed to get a monthly income of Rs.5,000/- The learned Judge further took the view that out of that, even keeping apart half of the amount for the petitioner and his fractional liability to maintain his parents, if any, the claimants are R.P.F.C.No. 353 of 2007 4 entitled for Rs.2500/- p.m. in all. The said approach made and the process of legal reasoning on probabilities adopted by the learned Judge of the Family Court is found to me to be justified. 5. It will not be inapposite in this context for this Court to remind itself the nature, quality and contours of the revisional jurisdiction of superintendence and correction. It is by now trite that any and every error, even assuming that such error has been committed by the subordinate court, shall not persuade the court of revision to invoke its revisional jurisdiction of superintendence and correction. The finding must be grossly erroneous. The discretion exercised must be grossly improper. Such vice must also lead to miscarriage of justice. Then and then alone can a court choose to invoke the revisional jurisdiction of superintendence and correction. 6. This revision petition deserves to be and I do hereby dismiss the same. (R. BASANT) Judge tm