IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 RPFC.No. 190 of 2006() ---------------------- MC.98/2005 of Family Court, Alappuzha .................... (S): REVISION PETITIONER/RESPONDENT -------------------------------------------------- K.P.VARGHESE, AGED 46, S/O.PAPPY, KOTTYMOOTTIL, VETTUVENI MURI, HARIPAD P.O. BY ADV. SRI.R.PADMAKUMAR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): PETITIONERS -------------------------- 1. SUSY.M., AGED 30, PUTHANKANDATHIL, CHURATTOOR MURI, THEKKEKARA VILLAGE. 2. SNAHA VARGHESE, PUTHANKANDATHIL, CHURATTOOR MURI, THEKKEKKARA VILLAGE. ADV. SRI.A.SHAFEEK FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.190 of 2006 ---------------------------------------- Dated this the 17th day of October 2008 O R D E R The petitioner has suffered an order under Section 125 Cr.P.C to pay maintenance to his wife and child under Section 125 Cr.P.C at the rate of Rs.400/- and Rs.350/- per mensum respectively. Marriage is admitted. Paternity is not disputed. That the spouses are living separately is conceded. There is a contention that the wife is residing separately without sufficient cause. Though a specific offer to maintain her on condition that she lives with him is not made in the course of the proceedings, a contention is raised that the wife is residing separately without sufficient cause. The law is very clear, wherever the wife is, the husband is liable to maintain her. But the claim for maintenance can be resisted if the husband makes an offer to the wife to maintain her on condition that she lives with him. If she refuses to live with him in spite of such a bona fide offer, then the grounds raised by her will have to be considered. Only if there is a just ground or sufficient reasons for such separate residence, shall she be entitled for separate maintenance. R.P.F.C.No.190/06 2 2. Having so understood the law, I shall look at the facts. In this case, separate residence is admitted. There is no specific offer made to maintain her on condition that she lives with him. I shall assume that there is an offer. An offer should not be an offer for the sake of an offer. An offer must be a bona fide one. The petitioner did not even appear in the witness box to make such an offer. In the instant case, the counter statement reveals that the husband/petitioner herein made a specific imputation that the wife is living in illicit intimacy with her sister's husband. It is such husband offers to maintain her. Less said about the offer the better. He does not attempt to substantiate the vague and grossly improbable allegations raised by him that she is living in illicit intimacy with her brother-in- law. It is evident that the offer is not a bona fide one and only a ruse to avoid the liability for payment of maintenance. 3. It is next contended that the husband is ill. He has mental ailment. He did not choose to take the witness stand; but chose to examine RW1, a medical practitioner who is rendering psychiatric treatment to the petitioner. The doctor in his evidence clearly stated that though the petitioner has mental R.P.F.C.No.190/06 3 ailment, that need not stand in the way of his working and earning his livelihood. The learned Judge has taken all the circumstances into account and has chosen to direct payment of only an amount of Rs.400/- and Rs.350/- as maintenance. The learned counsel for the petitioner contends that the petitioner is ill and has therefore needs to be reckoned as a person having “sufficient means”, against whom alone an order under Section 125 Cr.P.C is liable to be passed” The evidence of RW1 shows that the ability of the petitioner to work and earn his livelihood is not totally lost. He has not entered the witness stand to say that he is not able to earn his livelihood. Alternatively he made an offer to maintain the wife on condition that she lives with him. It is not explained how he proposes to maintain her in that event. The contention that the petitioner is having no sufficient means is also thus not valid or reasonable. 4. Coming to the quantum, I am satisfied that the quantum of maintenance awarded is absolutely reasonable and I do not find any reason to interfere with the impugned order granting maintenance by invocation of the revisional jurisdiction of superintendence and correction. R.P.F.C.No.190/06 4 5. The upshot of the above discussions is that the challenge raised in this R.P.F.C deserves to be and it is hereby dismissed. 6. The learned counsel for the petitioner submits that it may be clarified that the impugned order will not, in any way, fetter his rights to approach the Family Court for a decree for restitution of conjugal rights. The law is well settled that an order directing maintenance does not, ipso facto, disentitle the Family Court from granting a decree for restitution of conjugal rights. If the petitioner moves the Family Court and establishes sufficient grounds, needless to say, he can claim a decree for restitution of conjugal rights. (R.BASANT, JUDGE) jsr R.P.F.C.No.190/06 5 R.P.F.C.No.190/06 6 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008