IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 RPFC.No. 81 of 2008() ------------------------------- MC.199/2007 of THE FAMILY COURT, THIRUVALLA .................... REVISION PETITIONER (S)/RESPONDENT ---------------------------------------- GOPINATHAPILLAI, S/O.RAMACHANDRAN PILLAI MATHARAMPILLIL VEEDU, MUNDAPILLY MURI, PERINIGADU VILLAGE. BY ADV. MR.ABRAHAM SAMSON RESPONDENT(S): PETITIONERS -------------------------- 1. ASHA, D/O.RADHAMANIAMMA, THENGUVILA PUTHENVEEDU, MUNDAPPALLY MURI, PERINGANADU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. 2. GAYATHRI.A.G.(MINOR), D/O.ASHA, AGED 6 YEARS, REPRESENTED BY THE FIRST RESPONDENT-MOTHER-GUARDIAN. R1 BY ADVS. MR.MVS.NAMBOOTHIRY, SMT.APARNA N.NAMBOOTHIRI. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.2706/2008 IN RPFC. NO.81/2008 DISMISSED 11/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = R.P.(F.C.) NO. 81 OF 2008 = = = = = = = = = = = = = = = Dated this the 11th day of February, 2010. O R D E R This revision is preferred by the husband against the order of maintenance granted in favour of the wife at the rate of Rs.500/- per month. The maintenance towards children ordered is not challenged. The points that arise for consideration are (1) regarding the entitlement of the maintenance and (2) the quantum. It is desirable to refer to S.125 Cr.P.C. to analyse the case. 2. U/s 125 Cr.P.C. the husband is bound to maintain the wife if she is unable to maintain herself. Similarly u/s 125 (4) if the wife is living separately by mutual consent she is not entitled to maintenance. The question of entitlement is argued on the ground that at the time of putting an end to the marriage the parties have entered into an agreement and it is contended by the learned counsel for the revision petitioner that by that agreement she had relinquished her right to get maintenance. On the contra the learned counsel for the wife R.P.(F.C.) NO. 81 OF 2008 -:2:- would submit that what is given up is only regarding the other monetary considerations and not the right to maintenance. Whatever it may be, under law unless it is proved that they are living separately by mutual consent the wife will be entitled to maintenance. When a matrimonial relationship is put an end to by executing an agreement then one cannot say that their residence thereafter is by mutual consent. Or in other words mutual consent in such circumstances also indicate that there must be a matrimonial relationship subsisting. Therefore the contention of the learned counsel that the wife is not entitled to maintenance by virtue of the terms of the agreement cannot be upheld. 3. The second question is regarding the entitlement of the wife on the ground that she is having sufficient income to maintain herself. Learned counsel for the revision petitioner submits before me that there was a joint property in the name of the husband and wife and the husband by virtue of the terms of the agreement had transferred his right to her and she became the absolute owner and thereafter she had R.P.(F.C.) NO. 81 OF 2008 -:3:- transferred the property and she is having sufficient amount which would be sufficient to make her both ends meet. At the time of cross examination a definite question was put to the effect that whether the property has been sold for six lakhs. The answer was she does not know but according to her she had handed over the money to the father and the money has been deposited in the name of the minor child and she does not know about the interest that is being received. So the property was in her possession. She had transferred the property, the consideration is with her or her father and therefore she definitely know all the things regarding the same. Therefore if those materials are made available before the Court below certainly the Court will be in a position to appreciate the factual materials and it appears to be that even if property has been given it does not ipso facto take away the right of the wife to get maintenance. At the time of fixation of maintenance, the income derived from that can be taken into consideration and to such an extend the amount quantified can be reduced with a direction to pay the balance R.P.(F.C.) NO. 81 OF 2008 -:4:- amount but there can be cases where the income derived is of such an extend that it will be sufficient to maintain the wife and in such cases she may not be able to get any maintenance. So this is a matter which requires factual consideration by the Court and for that some more materials are to be supplied by the parties for a proper decision. Therefore I set aside the order pertaining to the maintenance of the wife is concerned and remit the case back to the Family Court for fresh consideration in the light of the discussions made in the previous paragraphs. Let the parties be permitted to produce both documentary as well as oral evidence in support of their respective contentions and the matter be disposed of in accordance with law by the Court below. Parties are directed to appear before the Family Court on 5.3.2010. R.P.(F.C.) is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-