IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 RPFC.No. 53 of 2008() --------------------- MC.487/2003 of FAMILY COURT, THIRUVANANTHAPURAM .................... PETITIONER/COUNTER PETITIONER: ----------------------------------------------- P. PRADEEP KUMAR, EAST NANKOIKAL HOUSE, ARUMANA P.O., KANNYAKUMARI DISTRICT, TAMILNADU. BY ADV. SRI.G.SUDHEER RESPONDENTS: PETITIONERS: ------------------------- 1. P.R. NANDITHA, T.C.4/463/1, MAMPALLY VEEDU, KOWDIAR P.O., THIRUVANANTHAPURAM. 2. PRIYA P.N., D/O. P.R. NANDITHA, (MINOR REPRESENTED BY HER MOTHER THE NATURAL GUARDIAN, 1ST RESPONDENT). BY ADV. SRI.S.RAJASEKHARAN NAIR THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21/02/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 53 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2008 O R D E R This Revision Petition is directed against an order passed under Section 125 Cr.P.C to the petitioner to pay an amount of Rs.750/- and Rs.500/- respectively to the claimants, his wife and minor child. 2. Marriage is admitted. Paternity is not disputed. Separate living is conceded. There is no offer to take the wife on condition that she resides with the petitioner. Admittedly divorce application has been filed by the petitioner and the same is pending. 3. The wife contended that she is unable to maintain herself and that the petitioner having sufficient means is refusing and neglecting to maintain her and the child. There is no contention that any amount is being paid as monthly maintenance. R.P.F.C.No. 53 of 2008 2 4. The petitioner contended that his wife is not a woman unable to maintain herself and has properties and income by way of rent from the buildings. He further raised a contention that he is sick and is unable to work. It was further contended that the claimant wife is conducting a fancy shop. The petitioner contended that he does not have the means to pay the amount claimed by his wife and child. 5. The parties went to trial on these contentions. The claimant/ wife examined herself as PW1 and the petitioner herein was examined as RW1. Two persons, who allegedly are tenants in a building, which belonged originally to the parents of the claimant wife were examined as RWs. 2 and 3. Exts. B1 to B5 were also marked. Exts.B1 and B2 are settlement deeds, under which provision is made by the parents of the claimant wife for her. Exts.B3 to 5 are produced to show that there are tenants in the building in such property. 6. The learned Judge of the Family Court came to the conclusion that the petitioner has the means to pay an amount of Rs.750/- and Rs.500/- respectively to his wife and child. Accordingly the impugned order is passed. R.P.F.C.No. 53 of 2008 3 7. There is no representation for the respondent. The counsel for the petitioner has been heard. The learned counsel contends that the impugned order is bad for two reasons. First of all it is contended that the petitioner is not a person having sufficient means and the claimant wife is not a woman who is unable to maintain herself. Secondly it is contended that the quantum of maintenance awarded is excessive. 8. Exts.B1 and B2 have been considered by the learned Judge of the Family Court in detail. In one of them, life interest was reserved for the settler and the claimant wife will get income only after the life time of the settler. In the other, there is a stipulation that the recipient of the property has to maintain the settler. In view of these two stipulations, the learned Judge took the view that Exts.B1 and B2 cannot persuade the court to conclude that the wife is not unable to maintain herself. 9. Coming to the question of means of the petitioner, it is true that the estranged wife living away from her husband for a long number of years will not be able to and cannot reasonably be expected to adduce evidence about the quantum of income that he earns. She R.P.F.C.No. 53 of 2008 4 also admitted that he has met with an accident and was undergoing treatment. But according to her, he is continuing the business in rubber sheets, which he was having even prior to her marriage. It is true that clinching and authentic evidence about such business or income therefrom has not been adduced by the claimant wife. 10. Any court in the given circumstance must have taken into account the broad probabilities. The petitioner is a person aged about 37 years. He is one, who without dispute, offered to pay an amount of Rs.500/- as maintenance to his child. There is evidence to show that he has met with an accident. But significantly nothing has been produced to show that the petitioner is unable to pursue any employment or avocation. The word of the mouth of the petitioner notwithstanding, it is only reasonable in the facts and circumstance of this case to conclude that the petitioner must be having some employment and source of income. In this view of the matter, I am unable to agree that the learned Judge of the Family Court committed any error warranting interference by invocation of the revisional jurisdiction of superintendence and correction. R.P.F.C.No. 53 of 2008 5 11. I must alertly remind myself of the nature and quality of the revisional jurisdiction of superintendence and correction. Any and every error, assuming that there be errors, will not persuade this Court to invoke the revisional jurisdiction of superintendence and correction. The error must be gross. It must result in miscarriage of justice. It is then and then only there is need for this Court to invoke the revisional jurisdiction of superintendence and correction. Such jurisdiction shall not be readily and lightly invoked to interfere with the discretions exercised by the subordinate courts in the matter of appreciation of evidence or while fixing the amount payable as maintenance. Unless such discretions exercised are shown to be perversely erroneous, such jurisdiction cannot be and need not be invoked. In any view of the matter, I am satisfied that the court below has committed no error in directing payment of meager amount of Rs. 750/- and Rs.500/- respectively to the wife and child. The said order does not at all warrant interference. 12. The learned counsel for the petitioner submits that the petitioner is now liable to pay maintenance from the date of the R.P.F.C.No. 53 of 2008 6 petition and this would work out great prejudice and hardship to the petitioner. Steps for execution have already been initiated and the petitioner is facing the prospect of incarceration in prison for not making the payment. It is for the petitioner to appear before the Family Court and show his bonafides by making substantial amounts towards the amount due. He must make his request before the learned Judge, after making such substantial payment, for facility to pay the balance amount within a reasonable time. I have no reason to assume that the learned Judge will not consider such request if the petitioner shows his bonafides by making appropriate payment. 13. This revision petition is, in these circumstances, dismissed. (R. BASANT) Judge tm