IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 RP(FC).No. 237 of 2010() ---------------------- MC.24/2009 OF THE FAMILY COURT, THODUPUZHA .................... REV.PETITIONERS/PETITIONERS: ----------------------------------------------- 1. SINDHU, D/O.THOMAS PAUL, AGED 34 YEARS, RESIDING AT ARAMBANKUDIYIL HOUSE, THATTEKKADU PO, KOTHAMANGALAM, ERNAKULAM DISTRICT - 686 691. 2. MARIA CATHERINE JIMMY, D/O.JIMMY AGED 4 YEARS(MINOR) REPRESENTED BY HER MOTHER SINDHU, D/O.THOMAS PAUL, ARAMBANKUDIYIL HOUSE, THATTEKKADU PO, KOTHAMANGALAM, ERNAKULAM DISTRICT - 686 691. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S)/RESPONDENT: ------------------------- JIMMYCHAN JOSEPH, KURISUMMOOTTIL HOUSE, KARIMKUNNAM PO, THODUPUZHA TALUK-685 586. ADV. SRI.PHILIP T.VARGHESE FOR R1 SRI.THOMAS T.VARGHESE FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 22/08/2011 ALONG WITH RPFC NO.378 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.P.(F.C.)NOS.237 & 378 OF 2010 ----------------------------------- Dated this the 22nd day of August, 2011 O R D E R Both these revisions arise from a proceeding under Section 125 of the Code of Criminal Procedure. R.P.(FC).No.237 of 2010 is by the wife and child, the petitioners in M.C.No.24 of 2009 on the file of the Family Court, Thodupuzha, whereunder, they challenged the quantum of maintenance awarded as inadequate. The other revision, R.P.(F.C.).No.378 of 2010 is by the respondent in the above M.C., questioning the maintenance fixed and awarded. The learned Judge, Family Court, after considering the rival case set up by the parties, with reference to the materials tendered, has awarded maintenance at the rate of Rs.2,000/- to the wife and Rs.1,500/- to the child, per month, as payable by the respondent/husband and father. 2. Parties are hereinafter referred to as the 'petitioners' and 'respondent' as styled in the M.C. R.P.(F.C.)NOS.237 2 & 378/2010 3. Though the respondent in R.P.(F.C.).No.378 of 2010 has raised a challenge over the awarding of maintenance to the wife contending that she has no justifiable cause to live separately from him, at the time of hearing, finding that such a challenge cannot be sustained, more particularly, to impeach the propriety, legality and correctness of the order impugned, in exercise of the revisional jurisdiction, it was not perused. Dispute raised by both sides centered over, and confined to, the quantum of maintenance fixed and awarded. The petitioners have a case that the quantum fixed and awarded by the court below is grossly inadequate, and according to the respondent it is excessive and unreasonable and, thus, warrants interference. 3. The undisputed facts presented in the case disclose that the wife and child are living separately from the husband and, still, other proceedings over the matrimonial disputes between the husband and wife are pending before the Family Court. The respondent is possessed of 31/2 acres of agricultural land, in R.P.(F.C.)NOS.237 3 & 378/2010 which, a portion has been converted as a rubber plantation with 150 yielding rubber trees, is not a matter of dispute. Similarly, that he is possessed of another three acres of land in Palakkad which is cultivable with mango plantation capable of giving income from such agricultural activity, is also not seriously disputed. However, the respondent has a case that the land of three acres situate in Palakkad is barren though previously in such land agricultural activities of mango plantation were carried on. Going through the order passed by the Family Court Judge, it is seen that after entering a finding that the petitioners, wife and child, are entitled to claim maintenance from the respondent and that he is possessed of sufficient means, the quantum of maintenance was fixed and awarded with reference to the requirements of the wife and also her admissions made as to what was the expenses incurred at the time when the spouses lived together. In evidence, she had admitted that while they lived together, the expenditure incurred was Rs.2,500/- per month, it appears, was given weightage by the learned Judge, Family Court, to fix the quantum, taking a view that the wife R.P.(F.C.)NOS.237 4 & 378/2010 wanted to lead a luxurious life without doing any work and such kind of attitude cannot be laid by a court of law. The parameters governing fixation of quantum in awarding maintenance, no doubt, were ignored by the learned Judge, Family Court when quantum of maintenance was fixed in favour of the wife and children. What is the income potentiality of the husband has to be first of all arrived, and then, the needs and requirements of the wife, that too, with reference to the status of the parties. Even if the wife is capable of carrying out any profitable vocation and, thus, generate reasonable income, that would not deprive or dissentitle her from claiming maintenance from her husband if she is not having then the means for sustenance. She may have chances of getting income by doing some work, is no ground to hold that she cannot claim or entitled to get only a lesser sum from her husband. The laudable objective behind Section 125 of the Cr.P.C. is to provide succour to destitutes. That statutory mandate has to be given effect to, and there cannot be travesty of justice on whimsical notions. The observations made by the learned Judge, Family Court that the wife wants to lead a R.P.(F.C.)NOS.237 5 & 378/2010 luxurious life without doing any work, to say the least, is adding injury to her when she has applied for getting maintenance, which is her statutory right. It may be inappropriate for the revisional court to fix the quantum of maintenance even where it finds that the inferior court has failed to fix the quantum taking into account all matters which are relevant for doing so. So much so, I find the order impugned in the revision to the extent of fixing the quantum calls for modification, and for that limited purpose, the case has to be sent back to the court below. Till final orders are passed in the case afresh by the court below, the quantum of maintenance now fixed and awarded to the wife and child shall be treated as interim maintenance and it shall be continued to be paid by the respondent/husband. The only enquiry that is to be gone into by the court below is the fixation of quantum and that alone. 4. The revisions are disposed of directing the court below to pass appropriate orders fixing the quantum of maintenance taking note of the observations made above and in accordance R.P.(F.C.)NOS.237 6 & 378/2010 with law, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this order. The parties are directed to mark their appearance before the Family court on 17.10.2011. S.S.SATHEESACHANDRAN JUDGE prp R.P.(F.C.)NOS.237 7 & 378/2010