IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 RPFC.No. 294 of 2009() ---------------------- MC.459/2007 of FAMILY COURT, PALAKKAD. .................... REVISION PETITIONER/PETITIONER NO.1: ------------------------------------------------------------------- RATHNAKUMARI,D/O.CHELLAPPA ASSARI, AGED 26 YEARS,KADAMBADIYIL,CHITTUR VILLAGE, CHITTUR TALUK,PALAKKAD DISTRICT,NOW RESIDING AT VETTIVEL NILAYATHIL,THENKARA VILLAGE, MANNARKKAD TALUK,PALAKKAD DISTRICT. BY ADVS. MR.RAJESH SIVARAMANKUTTY, MR.N.N.AZAD. RESPONDENT(S): RESPONDENT: ---------------------------------------------------- KANTHAVELU,S/O.NADESAN ASSARI, AGED 38 YEARS,KADAMBADIYIL,CHITTUR VILLAGE, CHITTUR TALUK,PALAKKAD DISTRICT. BY ADVS. MR.SAJAN VARGHEESE K., MR.LIJU. M.P. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24/02/2010 ALONG WITH RP(FC) NO.330/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... R.P.(F.C).Nos.294 & 330 OF 2009 ............................................. Dated this the 24th day of February, 2010. O R D E R Both these revisions are preferred against the order of the Family Court, Palakkad in M.C.No.459/2007. The wife and child moved an application against the husband for maintenance and the family court did not grant maintenance to the wife but ordered maintenance to the child at the rate of Rs.1,500/= per month. Aggrieved by the dis allowance of maintenance to the wife, she has come up in RP(FC). No.294/2009 and dissatisfied with the quantum awarded to the child, the husband has come up in RP(FC).No.330/2009. 2. Heard the learned counsel for both sides. Admittedly the relationship as husband and wife and paternity of the child are not in dispute. The first thing is to consider about the reason to live separately. The wife as PW1 had deposed before the court that she has been ill-treated by the husband and members of the family had insisted to take her back to the parental home. Strangely this evidence is not challenged in the cross examination or a sentence is spoken : 2 : R.P.(F.C).Nos.294 & 330 OF 2009 to by the husband in his evidence in the chief examination. Therefore, it is only the unchallenged testimony of PW1 regarding the act of cruelty is available. So, when it is accepted, grounds are there to live separately. 3. Now turning to the refusal of maintenance to the wife. The family court wanted the negative to be proved and disallowed the maintenance. It is submitted that father of the wife was running a jewelery called Murali Jewellery and it is spoken to by PW1 that it had a good reputation but towards the fag end, there was not even a gold available in the jewellery and on the death of the father, brother of the petitioner in the MC had come and started the jewellery of his own and it is specifically deposed that the wife did not have any right in the jewellery. So far as the landed property is concerned, the wife would depose that a very small extent of land belonging to the family wherein there are about 8 coconut trees alone is there. The family court also found that the husband has not succeeded in proving that the wife is taking tuition. Unfortunately the family court felt that the wife should have proved that she : 3 : R.P.(F.C).Nos.294 & 330 OF 2009 does not have any share in the property. One cannot expect from a person to prove something which is against and when it is possible to prove the matter positively by producing evidence, a negative cannot be ordered to be proved. If really it was a joint family property, certainly the husband could have produced some documents to prove the same. It is pertinent to note that the husband has categorically admitted in the cross examination that: 4. Therefore merely on the basis that the father was running a jewellery at a point of time without knowing what are the assets or the credibility of that jewellary it was not correct on the part of the family court to jump to the conclusion that the wife is not entitled to claim maintenance. Now turning to the child. The child is certainly entitled to be maintained but for a three year old child what shall be the quantum can be discussed by me as follows: : 4 : R.P.(F.C).Nos.294 & 330 OF 2009 5. Under the provisions of the Criminal Procedure Code, the wife and children are expected to be maintained by the husband when unable to maintain themselves. As stated by me earlier, there is no evidence to prove that the wife and child are able to maintain themselves But it is equally the settled principle that while fixing the quantum of maintenance, the income of the husband and his capacity to pay also has got a role for the reason that order is always passed in order to make the wife and child live and so as to avoid destitution. Without realizing the capacity of the man to pay if maintenance orders are passed end result will be to put the husband in jail which is not the intention of the legislature. That is why it has always been held that capacity to pay also has to taken into consideration. The husband is a young man, He himself proclaims to be a hard working personality and he is a mathematics teacher. According to the wife, he was running tuition center called Alfa tuition center. The word Alfa indicates his interest in mathematics. But he would say that his income is not that extent. Unfortunately materials are not available to fix his income. : 5 : R.P.(F.C).Nos.294 & 330 OF 2009 Therefore only the balance can be struck and reasonable amount can be ordered considering the capacity of the husband. Therefore I feel that this is a fit case where the husband can be directed to pay maintenance at the rate of Rs.1,000/= per month payable to the wife and child from the date of order and if circumstances exist after passage of some time, both sides are at liberty to move the family court under Section 127 of the Cr.P.C for variance of the order. 6. In the result, both the revisions are disposed of and the order passed by the family court refusing maintenance to the wife is set aside and the quantum awarded to the child is alters as follows; 7. The husband is directed to pay a monthly maintenance of Rs.1,000/= each to the wife and child payable from the date of petition i.e., 10.12.2007 and the mother is entitled to withdraw the amount on behalf of the minor child as well. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 6 : R.P.(F.C).Nos.294 & 330 OF 2009 : 7 : R.P.(F.C).Nos.294 & 330 OF 2009