IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 RPFC.No. 267 of 2009() ---------------------- MC.148/2008 of FAMILY COURT, ERNAKULAM .................... PETITIONER/RESPONDENT ----------------------------------------- S.VINOD, S/O. N.SADANANDAN, AGED 33 YEARS, MADHU NIVAS, MUTTAR LINK ROAD, MANJUMMEL P.O., ELOOR, ERNAKULAM DISTRICT. BY ADV. DR.SEBASTIAN CHAMPAPPILLY SMT.ANNIE GEORGE SMT.P.S.BOBY SRI.T.C.DIPIN RESPONDENTS/PETITIONERS: --------------------------------------------- 1. K.SINI, D/O. KANAKAN C.K., AGED 27 YRS, CHOORAKOTTAYIL HOUSE, PUTHUPPALLYPURAM, EDAPPALLY P.O., ERNAKULAM DISTRICT. 2. MEENAKSHI, AGED 2 YEARS, MINOR, REP. BY HER MOTHER K.SINI, D/O. KANAKAN C.K., CHOORAKOTTAYIL HOUSE, PUTHUPPALLYPURAM, EDAPPALLY P.O., ERNAKULAM DISTRICT. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RPFC.No. 267 of 2009 ORDER ON CRL.M.A NO.7004/2009 IN RP(FC).No. 267 of 2009 DISMISSED SD/- 22/07/2009 THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE Sbna/- THOMAS P JOSEPH, J ---------------------------------------- R.P.F.C.No. 267 of 2009 --------------------------------------- Dated this 22nd day of July 2009 ORDER Heard counsel for petitioner. 2. As per the impugned order maintenance at the rate of Rs.1500/- per month was awarded to respondent No.2, his daughter aged 2 years at the time of filing the application in the year 2008. Petitioner married respondent No.1 on 24-05-04. She alleged matrimonial cruelty and harassment on the part of petitioner. Unable to bear the cruelty and harassment she had to set up separate residence. She also alleged that during the time she stayed with petitioner, she was once locked up in a room without providing food and water. These allegations were denied by petitioner. Learned Judge found that though allegations regarding cruelty are established, respondent No.1 is employed, capable of maintaining herself and hence is not entitled to get maintenance from petitioner. Question for consideration is whether maintenance awarded to respondent No.2 is excessive. It is contended by learned counsel that learned Judge proceed on the assumption that petitioner is able bodied and hence should be presumed to have the sufficient means. According to learned counsel, that principle is applicable only in the case of persons who are not engaged in any work. Here, petitioner is working as a coffee boy in the canteen of FACT, Udyogamandal. It is pointed out by R.P.F.C.No.267 of 2009 2 learned counsel that as disclosed by Ext.B2, petitioner gets only Rs.3000/- per month. Petitioner has to maintain his aged parents. 3. I am not inclined to think that the principle that an able bodied man should be presumed to be capable of earning is available only in the case of non earning persons. “Means as understood in Sec.125(1) of the Code of Criminal Procedure (for short, “the Code”) is the capacity to earn. That applies to every person made liable to pay maintenance whether he is engaged in work or not”. Assuming that petitioner is employed as a coffee boy in a canteen and earning Rs.3000/- per month as stated in Ext.B2 and that is not sufficient, he has to augment his income by all lawful means and ways and provide maintenance to those whom he is liable to maintain. A father has the liability to maintain his minor children. Section 125(1) of the Code does not errate any right or liability for payment of maintenance. The section recognizes such right or liability. The father cannot say that his income is meagre and hence he is not liable to pay maintenance to his minor child. So far as he is able bodied and capable of earning he has to find ways to raise necessary funds to provide maintenance. Manu has enjoined that “the aged parents, a virtuous wife and infant child must be maintained even by doing a hundred misdeeds”. R.P.F.C.No.267 of 2009 3 4. Therefore, petitioner by whatever lawful means available to him has to augment the income and maintain his child who is otherwise unable to maintain herself. 5. Coming to the question whether the sum of Rs.1500/- is excessive, it is true that respondent No.2 was aged only 2years at the time of filing the application . At the same time I must also bear in mind that “maintenance” includes clothing, food, shelter and all other basic necessities of life. In the tender years, the child requires good health care also. She had to be sent to the nursery school. All these involves good expenses. I am not inclined to think that Rs.1500/- (just Rs.50/- day) is so exorbitant a sum that it calls for interference by the revisional court. Amount awarded is not beyond the reach of petitioner so that this court should interfere. There is no merrit in the revision. It fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/