IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 Mat.Appeal.No. 85 of 2010() --------------------------- OP.141/2009 of FAMILY COURT, MALAPPURAM .................... PETITIONER(S): APPELLANT/RESPONDENT ----------------------------------- AHAMMAD SUBAIR, AGED 36 YEARS, S/O.K.V.SAITHALAVI, AHAMMAD MANZIL, NOOR NAGAR, THENKARA P.O., MANNARKKAD VIA, PALAKKAD DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, ABDUL ZAMEER K.S. BY ADV. SRI.K.ABDUL JAWAD SRI.U.MUHAMMED MUSTHAFA RESPONDENT(S): PETITIONER ------------------------- NAFSIYA, AGED 29 YEARS, D/O.MAMU HAJI (LATE), W/O.AHAMMAD SUBAIR, VAKKAYIL HOUSE, BHAVANAM PARAMBA, KARUVARAKKUNADU P.O., MALAPPURAM DISTRICT, PIN-676 523. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2010, ALONG WITH RPFC NO. 259 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.85 of 2010& R.P.F.C.No.259 of 2010 ------------------------------------------------------------------------------- Dated this the 20th day of July 2010 J U D G M E N T Basant,J This appeal and the R.P.F.C are directed against a common order passed by the Family Court, Malappuram. Past maintenance for 25 months was claimed in O.P.No.141/09. Future maintenance under Section 125 Cr.P.C was claimed in M.C.No.143 of 2009. An amount of Rs.5,000/- per mensum for the wife and Rs.1,500/- per mensum was awarded for the wife and child as past and future maintenance. 2. The appellant claims to be aggrieved by the impugned order. Marriage is admitted. Separate residence is also admitted. There was a contention that divorce has been effected. This was denied by the wife. No worthwhile material was adduced in support of the plea of divorce. In the light of the decision in Shamim Ara v. State of U.P [2002(3)KLT 537 (S.C)], the appellant/petitioner-husband cannot be heard to contend that on the available materials divorce has been established as insisted by law. 3. There was a contention that the wife is employed. In support of that assertion also, no material whatsoever has been Mat.Appeal No.85/10 & R.P.F.C No.259/10 2 adduced. The court below did not accept that assertion. The claim for maintenance of the child is conceded and the order passed is not challenged before us in the course of arguments. 4. Thus, in the course of arguments before us, the short question canvassed is that the quantum of past and future maintenance for the wife at the rate of Rs.5,000/- per mensum is excessive. This is the short question that falls for consideration in this Mat.Appeal and the R.P.F.C. 5. The husband is employed abroad. He was so employed even prior to his marriage with the claimant/wife. He has been employed abroad for the past about two decades, without any disputes. The wife asserted that the husband's monthly income exceeds Rs.1,00,000/-. She tendered her own oral evidence in support of that assertion. A power of attorney holder of the husband was examined as RW1. Even in the counter, the vague allegation is after deducting all expenses, his income is only Rs.5,000/- per mensum. RW1 did not adduce any satisfactory evidence - oral or documentary, on that aspect. The court below mainly relying on broad probabilities came to the conclusion that the appellant can reasonably be directed to pay an amount of Rs.5,000/- per mensum as past and future monthly maintenance to his wife . Mat.Appeal No.85/10 & R.P.F.C No.259/10 3 6. We have been taken through the impugned common order. We find absolutely no circumstances that can persuade us to take any contra view. The degree of affluence of the husband is revealed from the fact that he has been employed abroad for the past about two decades admittedly. He did not adduce any better evidence to prove his precise income. It would be idle to expect the wife, left in India, to adduce evidence about the precise income of the husband, employed abroad. The burden was undoubtedly on the husband to adduce evidence, if he had a contra case to about his actual income. He did not discharge that burden on him. 7. In any view of the matter, we are satisfied that the quantum of maintenance fixed by the court below cannot be held to be incorrect, inappropriate or perverse as to warrant invocation of our appellate jurisdiction under Section 19 of the Family Courts Act or our revisional jurisdiction under Section 401 Cr.P.C. 8. This appeal and the R.P.F.C are, in these circumstances, dismissed. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr // True Copy// PA to Judge Mat.Appeal No.85/10 & R.P.F.C No.259/10 4 Mat.Appeal No.85/10 & R.P.F.C No.259/10 5 Mat.Appeal No.85/10 & R.P.F.C No.259/10 6 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 19/07/2010