IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 RPFC.No. 519 of 2007() ---------------------- MC.84/2005 OF FAMILY COURT, ERNAKULAM .................... REVISION PETITIONER/COUNTER PETITIONER ------------------------------------------------------- K.B.KUNJUMOHAMMED, S/O.BAPPU, AGED 50 YEARS, NOORA TEXTILES, MUNCIPAL SHOPPING COMPLEX, NEHRU PARK, MUVATTUPUZHA. BY ADV. SMT.NAINA RAJI NAIR SRI.M.J.JOHNSON RESPONDENTS: PETITIONERS ------------------------ 1. ASMA BEEVI.K.E., D/O.IBRAHIM, AGED 44 YEARS, NOW RESIDING AT KURUPPASSERI HOUSE, MADRASSA LANE, ALUVA-1. 2. K.M.NOORUNNIZA (MINOR), D/O.K.B.KUNJUMOHAMMED, AGED 14 YEARS, REPRESENTED BY HER MOTHER ASMA BEEVI.K.E., D/O.IBRAHIM, AGED 44 YEARS, NOW RESIDING AT KURUPPASSERI HOUSE, MADRASSA LANE, ALUVA-1. 3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13/02/2008, ALONG WITH RPFC NO. 25 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` R.P.F.C. Nos.519 OF 2007 and 25 OF 2008 ```````````````````````````````````````````````````` Dated this the 13th day of February, 2008 O R D E R These revision petitions are directed against the same order passed by the Family Court under section 125 Cr.P.C. Claimants are the wife and daughter of the respondent before the Family Court. Marriage is admitted. Paternity is admitted. Separate residence is also admitted. That the petitioner has married another woman on 10.3.05 is also admitted. That the petitioner is running a textile shop at Muvattupuzha is also conceded. That the petitioner was employed earlier for a period of 18 years abroad is also admitted. There is no worthwhile contention or evidence to show that the claimants - wife and daughter, are not unable to maintain themselves. 2. The husband/father contended before the Family Court that the wife was residing separately without sufficient R.P.F.C.519/07 & 25/08 : 2 : cause. He has admittedly remarried on 10.3.05. He urged the contention that he was constrained to marry again because he was deserted by the claimant wife with effect from 20.10.04. He contended that he does not get any reasonable income from the textile business run by him. 3. The rival contestants examined themselves as PW1 and RW1. On the side of the husband, Exts.B1 to B12 are also marked. 4. The learned Judge of the Family Court came to the conclusion that the daughter, the second claimant, admittedly, born on 30.5.1990, is entitled for maintenance. The learned Judge further came to the conclusion that the wife is not entitled for separate maintenance. Accordingly, the learned Judge proceeded to pass the impugned order directing payment of an amount of Rs.2,000/- per month to the second claimant daughter and rejecting the claim of the wife altogether. 5. Both parties have come to this Court in revision. R.P.F.C.519/07 & 25/08 : 3 : Parties shall be referred to as husband and wife respectively. The husband assails the quantum of maintenance awarded for the daughter whereas the wife assails the rejection of her claim for maintenance under section 125 Cr.P.C. 6. Arguments have been heard. There is an attempt made to produce further materials in revision. I am not satisfied that any valid reason exists which can persuade this Court to receive further evidence at this stage of revision. The prayer for receipt of further evidence at the revisional stage is rejected. 7. I have first considered the challenge of the wife. On 10.3.05, after the filing of the maintenance case, admittedly, the husband has remarried. He has another wife. Whatever be the reasons that prompted him to contract a subsequent marriage, such subsequent marriage is an effective defence against his offer to maintain her on condition that she lives with him. Therefore, on and after 10.3.05, the claimant wife is certainly entitled for maintenance under R.P.F.C.519/07 & 25/08 : 4 : section 125 Cr.P.C. The learned Judge of the Family Court, according to me, had erred grievously in not accepting of the claim of the wife at least with effect from 10.3.05. 8. The next question to be considered is about the quantum of maintenance payable to the wife and also whether the direction to pay Rs.2,000/- per month to the daughter is excessive as to warrant invocation of the revisional jurisdiction of superintendence and correction against the said direction. 9. The difficulty of an estranged wife to prove the precise quantum of income of her husband living away from her must be reasonably reckoned by any prudent mind. Admittedly, for a period of 18 years, the husband was employed abroad. A reasonable idea about the probable degree of his financial affluence can certainly be gathered from this input. He, admittedly, runs a textile shop at Muvattupuzha. Admittedly, he has expanded his business. What was originally a one room shop has now become a two room shop. The husband did not help the Court by R.P.F.C.519/07 & 25/08 : 5 : volunteering information about the quantum of income that he derives, whereas, the claimant PW1 asserted that he makes an income of Rs.25,000/- per month. Due allowance for exaggeration notwithstanding the competence of the wife to make assertions about the income of her husband cannot obviously be doubted or disputed. The spouses were blessed with three children. Two of them - both male children, have already attained majority and the husband does not have the legal obligation to maintain them now. Another relevant input about the financial affluence of the husband can be gathered from the fact that as soon as separate residence started in 2004, on 10.3.05 he has remarried. He has undertaken the responsibility of bringing up another child and a child has been born in his second marriage also. Reasonable inferences can be drawn by a prudent mind. If the financial position of the husband were not satisfactory, it is unlikely that any person with his head on his shoulder would have chosen to undertake the responsibility of a second marriage and the R.P.F.C.519/07 & 25/08 : 6 : responsibility of maintaining one more child. These indications may not be final and conclusive but they are definitely relevant while attempting to ascertain the degree of financial affluence of the petitioner. 10. It will not be inapposite in this context to note that the liability to maintain the second claimant, the daughter, would normally come to an end on 30.5.2008, the date on which she would attain majority. 11. I am, in these circumstances, satisfied that it would be absolutely reasonable in the given circumstances to assume that the husband must be getting at least an income of Rs.15,000/- per month from the business run by him and his prior earnings by employment abroad and he is at any rate, liable to pay an amount of Rs.2,000/- to his daughter. The quantum fixed by the learned Judge of the Family Court cannot in any way be held to be excessive as to warrant revisional interference. So far as the wife is concerned, in the circumstances of the case, I am satisfied that she can R.P.F.C.519/07 & 25/08 : 7 : certainly be directed to be paid an amount of Rs.2,500/- per month from 10.3.05, the date of remarriage from which date there can be no doubt whatsoever about the liability of the husband to pay separate maintenance to her. 12. In the result : (a) R.P.F.C.No.519/07 is dismissed. (b) R.P.F.C.No.25/08 is allowed. The husband is directed to pay an amount of Rs.2,500/- (Rupees two thousand and five hundred only) per month to the first claimant wife with effect from 10.3.05. 13. All amounts deposited before the court below shall forthwith be released to the claimants. Needless to say, credit shall be given to such amounts while computing the quantum of arrears of maintenance which is liable to be paid. (R.BASANT, JUDGE) aks