IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RPFC.No. 92 of 2009() --------------------- MC.408/2006 of FAMILY COURT, KANNUR DTD. 12/08/2008 .................... PETITIONER/COUNTER PETITIONER: -------------------------------------------------- KUNHIRAMAN.K., AGED 62 YEARS, S/O.KAMMARAN, KUNNOTH HOUSE, CHORKALA, KURUMATHOOR AMSOM DESOM, TALIPARAMBA TALUK. BY ADV. MR.BLAZE K.JOSE RESPONDENT(S): PETITIONERS: ------------------------------------------------- 1. KAMALAKSHI.E., AGED 55 YEARS, W/O.KUNHIRAMAN, EDADATHIL, CHUZHALI AMSOM DESOM, TALIPARAMBA TALUK. 2. SATHEESAN.E., AGED 32 YEARS, S/O.KUNHIRAMAN OF DO. DO. R1 & R2 BY ADV. MR.M.SASINDRAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J ---------------------------------------- R.P.(F.C) 92 of 2009 --------------------------------------- Dated this 24th day of June 2009 ORDER A husband now aged 62 years and who has been directed to pay maintenance to his wife, now aged about 53 years (at the rate of Rs.15/- per day) has come up in revision challenging that order. Respondents claimed that petitioner, husband of respondent No.1 and father of respondent No.2 neglected and refused to maintain them since about four years before they filed petition in the court below. They also alleged that petitioner is staying with another lady by name Leela. They claimed maintenance for respondent No.1 and respondent No.2 who is aged about 29 years but is deaf and dump alleging that they are unable to maintain themselves. According to the respondents petitioner has sufficient means to pay maintenance. In response, petitioner contended that he had to vacate the family house unable to bear insult and harassment at the hands of respondents. In the court below respondent No.1 gave R.P.F.C.No.92/2009 2 evidence as PW.1. Petitioner gave evidence as CPW.1 and proved Exts. B1 and B3, copy of title deeds in favour of respondent No.1 for a total of 1.19 acres. He claimed that respondents are residing in the house belonging to him while he is staying in a rented house. He has retired from service and is getting a meager sum of Rs.1500/- as pension. Learned judge of the Family Court found that respondent No.2, though deaf and dump is capable of maintaining himself and refused to award maintenance to him. So far as respondent No.1 is concerned learned judge came to the conclusion that though she has some property as revealed from Ext.B1 to B3, that itself is not sufficient to deny her maintenance. That respondent No.1 has some property does not discharge the petitioner from his liability to maintain her and taking into account her needs directed petitioner to pay maintenance to her at the rate of Rs.450/- a month. Learned counsel for petitioner contended that this is not a case of respondent No.1 being unable to maintain herself. On the other hand evidence shows that respondent No.1 is placed in more affluent circumstances than the petitioner. Counsel R.P.F.C.No.92/2009 3 for respondent No.1 supported the order. 2. It is true that going by Ext.B1 to B3 respondent No.1 owns and is in possession of some property as I have already stated above. So far as the 19 cents covered by Ext.B1 is concerned, respondent No.1 when examined as PW1 stated that she is not in possession of that property. She pleaded ignorance about that. She however admitted Ext.B2 and B3, statement deeds excluded by her father and stated that in the property covered by Ext.B2 and B3, there were a few old rubber trees which were cut and removed in the year she gave evidence in the court below and rubber saplings have been planted recently. She admitted that petitioner had given three cents and a shop to their eldest son. She is not aware whether petitioner has given 50 cents to their married daughter. She denied that she refused to look after her mother-in-law, harassed petitioner and in the circumstances he had to withdraw from the family house. She would say that neglecting herself and the deaf and dumb son (respondent No.2), petitioner want in search of better avenues and started residing with one Leela. R.P.F.C.No.92/2009 4 3. Going by the evidence and it is not disputed also, petitioner and respondents are living separately since the last several years. I do not find from the evidence any effective step taken by the petitioner either to establish his right to reside in the house belonging to him or to have the company of respondent No.1. Instead he continued to live in the rented house. There is no offer to maintain respondent No.1 even at this last stage. When respondent No.1 gave evidence that she was neglected by the petitioner, in the absence of cogent reasons that version of respondent No.1 need not be disbelieved. I am not inclined to think that at this old age respondent No.1 would think of living separately from her husband and that too, looking after the deaf and dumb son aged about 29 years. I do not forget that as per the evidence of PW1, respondent No.2 is now learning tailoring. But a mere earning alone is not sufficient for such a disable pension. He needs assistance otherwise also. Therefore going through the evidence of the parties I do not find reason to think that respondent No.1 is living away from her own at her pleasure. R.P.F.C.No.92/2009 5 4. Now I shall refer to the question whether respondent No.1 is able to maintain herself. It has been held time and again that the mere fact that the wife is possessed of some property is not a ground to refuse maintenance to her. Court has to consider whether she is able to maintain herself. Question is whether wife is getting any income from such property and if so, such income is sufficient for her reasonable living. No doubt respondent No.1 owns and possesses some property the extent being 1.19 acres going by Ext.B1 to B3. But the uncontroverted evidence given by respondent No.1 is that there is no income from that property. A few old rubber trees in that property are already cut and removed and rubber saplings have been newly planted. Normally it takes another eight or nine years for those rubber saplings to grow and give yield. I am not inclined to think until respondent No.1 gets yield from those rubber saplings a few years later she should starve. Court below has taken care of the capacity of respondent No.1 to earn and considering the property she is in possession has fixed maintenance payable at Rs.450/- per month which is just R.P.F.C.No.92/2009 6 Rs.15/- per day. The amount fixed indicates that petitioner is only asked to contribute a little for her living expenses. Having regard to the basic needs of a lady aged 54 years I am not inclined to think that the amount awarded to her is a luxury. 5. What remained for consideration is whether petitioner is capable of making that payment. He is a pensioner and according to him, has only his pension for his requirements and now he is getting only Rs.1500/- per month. Respondent No.1 who has been living with the petitioner till about four year before she made the application has asserted that he is getting Rs.2500/- per month as pension. Petitioner though, was eager to produce and prove Ext.B1 to B3 did not produce any document to show the amount he is getting by way of pension. According to the petitioner he has settled some property in favour of respondent No.2 but to be enjoyed by the latter only after the death of the former. In other words petitioner is now in possession and enjoyment of some property which also is planted with rubber trees and according to him, giving three rubber sheets a day. Even at the age of 62 he can R.P.F.C.No.92/2009 7 earn. There is no physical or mental infirmity proved affecting his capacity to earn. I am therefore satisfied that the amount awarded is within his paying capacity. I do not find reason to interfere. Revision fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/