IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 RPFC.No. 380 of 2008 ----------------------------- ORDER DATED 31.10.2008 IN MC.230/2007 OF FAMILY COURT, ERNALULAM .................... REVISION PETITIONER/PETITIONER --------------------------------------------------- P.J. SHERLY, D/O. LATE JOSEPH, AGED 45 YEARS, PLASSERIL HOUSE, ERNAKULAM NORTH, PAUL ABRO ROAD, ERNAKULAM. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT/RESPONDENT ------------------------------------------ VARGHESE, S/O. LATE MATHEN, AGED 49 YEARS, KILUTTIL HOUSE, THENGOD KARA, KAKKANAD VILLAGE, ERNAKULAM DISTRICT. THIS REV.PETITION (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------ R.P.F.C.No.380 of 2008 ------------------------------------------ Dated, this the 12th day of February, 2009 ORDER This revision petition is preferred against an order of the Family Court, Ernakulam in M.C.No.230 of 2007. The wife has filed an application for maintenance against her husband claiming a sum of Rs.2000/- per month. The respondent had married the petitioner in 2000 and at the time of the marriage a child born in the first wedlock was there. The allegation is that the husband who is a drunkard used to bring his friends to the house and harass the petitioner by directing her to prepare food for all of them and beat her mercilessly and he did not even care to take her to the doctor while she was having bleeding and on account of the cruel treatment it became impossible for her to continue residence with the husband and therefore she left the matrimonial home. It is submitted that the husband is having landed property as well as an autorickshaw and has considerable income and therefore she is entitled to get maintenance at the rate of Rs.2000/- per month. 2. The respondent would contend that the wife was R.P.F.C.380 of 2008 2 never adjustive and she used to illtreat the child and never cared for her husband and she was leading a reckless life and she had left the matrimonial home of her own and therefore she is not entitled to any maintenance. The husband has also denied about the factum of ownership of the autorickshaw and the income derived therefrom. 3. In the trial court P.W.1 and R.Ws.1 to 3 were examined and the court below found that the wife had withdrawn from the company of the husband without any reasonable and probable cause and, therefore, she is not entitled to get maintenance under the provisions of the Act. It is against that decision the wife has come up in revision. 4. Though notice was issued to the counsel appearing for the respondent in the court below no memo has been filed so far. I have perused the memorandum of revision and heard learned counsel for the revision petitioner and perused the connected records as well. It is only oral evidence that is available before the court. Along with the revision memorandum a judgment passed by the very same court in O.P.No.225 of 2005 dated 11.10.2007 had been produced as Annexure A1. It was a case filed by the husband R.P.F.C.380 of 2008 3 for restitution of conjugal rights. The averment was that the wife had left the matrimonial home without any reasonable and probable cause. The court below considered the materials available before it and arrived at a decision that the wife is residing separately on valid reasonable and probable cause. It is true that against that decision a Matrimonial Appeal is pending before the High Court as Mat.A.No.197 of 2008. The court below did not bother to refer to this judgment at all and the very same court in two proceedings had arrived at two different findings which has resulted in miscarriage of justice. 5. I will analyze the evidence of P.W.1 and R.Ws.1 to 3 for arriving at a decision in this case. In the chief examination P.W.1 has deposed in tune with her allegations in the petition and had faced severe cross-examination. She had categorically reiterated about the acts of cruelty that has been meted out to her by the husband in cross examination. The husband on the contra, would submit that she has not been illtreated at all and it was the other way and he had tolerated her and inspite of the same she had left the matrimonial home without probable and reasonable cause. The wife has pinpointedly deposed before court that on one night she was R.P.F.C.380 of 2008 4 beaten and driven out of the house and she had been illtreated both mentally and physically on so many other occasions. She had then deposed that the child of the husband born on the first wedlock had illtreated her. When a pinpointed question was put to her why she is not prepared to live with the husband she had given explanation that she is afraid of her life and therefore she cannot live with him. So the evidence of P.W.1 is in tune with what she had stated in the previous case. Under ordinary circumstances a lady may always like to be with the company of the husband and it is the permanent shelter of her. Unless specific circumstances are pointed out to infer that she has left the matrimonial home without reasonable and probable cause maintenance can be decreed. So far as the husband is concerned, the contention is that he has never illtreated her. It has to be understood that it was a second marriage of the husband and there was a child who was staying at that point of time. He is also a driver by profession and it is not uncommon that people drink very heavily now a days which causes rupture in the family relationship and spoil the peaceful atmosphere of the matrimonial home. So far as the evidence of R.Ws.2 and 3 is concerned, they have nothing to speak about the illtreatment R.P.F.C.380 of 2008 5 or otherwise. R.W.3 claims to be the owner of the autorickshaw which is driven by the husband in this case. So the analysis of the materials would show that the version of the wife appears to be more probable and acceptable and, therefore relying on the same I disagree with the finding of the court below that she had left the matrimonial home without any rhyme or reason. Therefore, the said finding is vacated and hence she will be entitled to get maintenance. 6. The next question is regarding the quantum. The wife has projected her husband as a very rich man, but only mere ipse dixit of her is available with respect to the income derived by the husband. It is true that he is having some small extent of property and there is nothing to show that he is a person who is owning an autorickshaw, but it is admitted that he is driving an autorickshaw. It has also come out in evidence that the father of the husband owned a shop, but he would submit that the said shop is now remaining closed. So, even if it is taken for granted that he is only an autorickshaw driver, by sparing some income it will be possible for him to maintain his wife which he is legally bound to do. Therefore, taking into consideration the avocation and the fact that he is having some R.P.F.C.380 of 2008 6 small extent of property coupled with the existence of a shop, I feel that in the interests of justice Rs.1000/- can be awarded as maintenance per month. 7. In the result, the revision petition is allowed and the order passed by the Family Court is set aside and the petitioner herein is awarded a maintenance of Rs.1000/- per month from the date of the petition, namely 19.7.2007 and the respondent is bound to pay the same. Revision petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vns