IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 RPFC.No. 283 of 2009 ---------------------- MC.917/2008 of FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/RESPONDENT: -------------------------------------------------- HASAN KUTTY, AGED 42 YEARS, S/O.AHAMMED, MANIMUNDAYIL HOUSE, NAIRKUZHI P.O., R.E.C. VIA. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT/PETITIONERS: -------------------------- 1. AMINA SHAREEKHA, AGED 38 YEARS, D/O.MUHAMMED, THOTTATHIL QUARTERS, PUTHARIKKAL, PARAPPANANGADI. 2. SHAHABAS MUHAMMED, 8 YEARS (MINOR) 3. ASHIN NIHAL, 5 YEARS (MINOR) (MINOR PETITIONERS ARE REPRESENTED BY GUARDIAN MOTHER IST PETITIONER). THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.P.F.C.No.283 of 2009 --------------------------------------- Dated this 29th day of July 2009 ORDER Against an order for payment of maintenance to his two school going children aged 5 and 41/2 years (at the time of filing application) at the rate of Rs.1000/- and Rs.750/- respectively per month, a father has come up in revision contenting that he is bereft of any income, he is unable to earn and hence he may either be exonerated from liability to pay maintenance or that the amount payable may be reduced. Learned counsel contended that court below was carried away by the costly apparel, watch and shoe petitioner was wearing on the day he gave evidence in the court below. Learned counsel has referred me to the evidence of petitioner as RW1. It is also the contention of learned counsel that respondent No.1, wife of petitioner and mother of respondent Nos. 2 and 3 is employed and she can look after the children. 2. It is not section 125(1) of the Code of Criminal Procedure (for short, “the Code”) which created a right or liability for payment of maintenance. Petitioner as father of respondent Nos. 2 and 3 is obliged to pay maintenance to them so far as they are minors as provided under the Code. Hence, petitioner cannot shrug off his liability to pay maintenance. Question for consideration is whether petitioner has sufficient means and, whether the amount awarded is Crl.R.P.NO.283 of 2009 2 excessive. Courts have consistently held that 'means' as understood under section 125(1) of the Code is not existence of visible property but the capacity to earn. Petitioner is now aged around 42 years. Atleast there is no evidence to show that on account of any infirmity petitioner is unable to earn. According to him, he was working as a driver abroad where he met with an accident and he had to pay 5000/- riyals as compensation for which he had to sell his property. There is no case or evidence that the accident had resulted in physical infirmity for him to earn. Petitioner is a professional driver, a skilled worker. Though he claimed in chief examination that he is staying with a relative of his, in cross examination stated that he is staying in a rented premise paying rent of Rs.227/- a day. He also admitted that he had sufficient means to pay the interim maintenance court below had ordered in favour of respondent Nos. 2 and 3. With this much evidence concerning capability of petitioner to earn and taking note of fact at the time of giving evidence he was wearing costly dress, watch and shoe court below held that petitioner has sufficient means. On hearing learned counsel and going through evidence of petitioner as RW1, I am unable to think that the aggregate sum of Rs.1750/- ordered by the court below is beyond the reach of the petitioner. 3. It is true that respondent No.1, the mother is an earning member but, the court below has not awarded maintenance to her. It Crl.R.P.NO.283 of 2009 3 is also contention of petitioner that respondent No.1 can maintain the children. The fact that respondent No.1 is earning does not absolve liability of petitioner. It has come in evidence that respondent Nos. 2 and 3 are studying in English medium high school and around Rs.800/- per month is payable to them (together) by way of tuition fee. It is also in evidence that a sum of Rs.250/- each per month is payable as conveyance charges for the children to go to the school and come back. These circumstances have been taken into account by the court below to award maintenance. I do not find reason to interfere with the maintenance awarded, at the instance of petitioner. I do not find anything illegal, irregular or improper in the order under challenge requiring interference at the instance of petitioner. Revision fails. It is dismissed THOMAS P JOSEPH, JUDGE Sbna/