IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 RPFC.No. 174 of 2008() ----------------------------- MC.248/2007 of FAMILY COURT, KOTTAYAM. .................... REVISION PETITIONER/PETITIONER ----------------------------------------------------- THANKAPPAN, AGED 55, S/O. NARAYANAN, OLIYARACKAL HOUSE, VELLIYAMATTOM VILLAGE, POOCHAPRA KARA, THODUPUZHA TALUK, IDUKKI DT. BY ADV. SRI.DINESH R.SHENOY RESPONDENT/COUNTER PETITIONER: ------------------------------------------------------ SARASAMMA, AGED 45, W/O.THANKAPPAN, ELAKKATTU HOUSE, ADUKKAM.P.O, VADAKKEKARA VILLAGE, POONJAR, KOTTAYAM. BY THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P.(FC) No. 174 of 2008 ------------------------------------------------- Dated this the 18th day of June, 2008 ORDER The petitioner/husband has come to this Court with this revision petition aggrieved by the rejection of his prayer under Sec.127 of the Cr.P.C. to set aside an earlier order granting maintenance to his wife under Sec.125 of the Cr.P.C. 2. Fundamental facts appear to be not in dispute at all. Marriage took place in 1989. Two children were born in the wed-lock. Maintenance claim was filed by the wife and the children in 2005. Various contentions were raised. But the maintenance claim was allowed at the rate of Rs.500/- per mensem to all the three claimants. The petitioner filed a petition claiming divorce before the Family Court in 2007. When the matter came up for hearing, it appears that a settlement was worked out before the Family Court. The R.P.(FC) No. 174 of 2008 -: 2 :- relevant order dated 29/5/07 shows that: “The petitioner and the respondents have settled their disputes. Both of them settled and endorsed that they intend to live together and that this O.P. may be dismissed.” Accordingly, the said O.P. was dismissed by order dated 29/5/07. Thereafter, there is a dispute on facts. The petitioner asserts that the wife was not willing to join him and abide by the agreement before the divorce court. The wife, in turn, contended that the husband had no serious intention of taking her along with him. He had threatened her that she would be done away with if she chooses to live with him. Be that as it may, we find the husband coming to the court in December, 2007 with the present claim under Sec.127 of the Cr.P.C. According to him, the wife was refusing to live with him notwithstanding the alleged agreement before the divorce court and, in these circumstances, he is entitled to get the maintenance order in favour of the wife vacated under Sec.127 of the Cr.P.C. 3. The wife resisted the prayer under Sec.127 of the Cr.P.C. She asserted that whatever reasons that were available to her earlier to reside separately continued now also. Moreover, it R.P.(FC) No. 174 of 2008 -: 3 :- was contended that the agreement was made before the divorce court without any bona fides by the husband. It was a fraud played on her. 4. Parties went to trial on these contentions. The rival contestants tendered evidence on oath. There was only oath against oath before the Family Court to decide whether the assertions of the wife or the husband were correct about the post 29/5/07 continuation of the separate residence. 5. The learned Judge took note of the fact that there was no better evidence available. The learned Judge took note of another significant circumstance that had intervened admittedly in the year 2007 itself – the date of filing of the petition is not available. I shall be charitable and assume that it must have been filed after the application under Sec.127 of the Cr.P.C. The petitioner/husband had filed a petition for divorce in the year 2007 itself after having filed the petition under Sec.127 of the Cr.P.C. in December 2007 only. 6. When confronted with the question while he was tendering evidence as to whether he was willing to take his wife along with him, he made it clear that he was not at all interested to allow his wife to reside with him as he had by then filed the second application for divorce. R.P.(FC) No. 174 of 2008 -: 4 :- 7. The learned Judge of the Family Court, in these circumstances, came to the conclusion that there are no circumstances justifying the prayer for cancellation of the order of maintenance already granted. Accordingly, the learned Judge proceeded to pass the impugned order. 8. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner contends that the learned Judge erred in coming to the conclusion that the wife was not at fault for not resuming cohabitation after the order dated 29/5/07. This is the plank on which the impugned order is attacked. 9. Having heard the learned counsel for the petitioner in detail and having perused the impugned order, I find absolutely no merit in the challenge raised. There was a factual controversy as to who was at fault for not resuming cohabitation after the order dated 29/5/07. The petitioner contended that the wife was. The wife contended that the petitioner was. It is important to note that not even a notice had been issued by the petitioner calling upon the wife to resume cohabitation. He has not subsequently insisted on resumption of cohabitation by filing an application for restitution of conjugal rights. He evidently had rushed to the Family Court with the petition under Sec.127 R.P.(FC) No. 174 of 2008 -: 5 :- of the Cr.P.C. for cancellation of the order already passed and simultaneously filed another application for divorce. When the matter came up for trial it is evident that “the petitioner was not at all interested to allow his wife to reside with him”. 9. I must alertly remind myself of the nature, quality and contours of the revisional jurisdiction of superintendence and correction which I am called upon to invoke and exercise. In the factual scenario referred above, I am unable to find any vice in the impugned order which can persuade this Court to invoke such revisional jurisdiction of superintendence and correction. I find that the decision of the court below to be cogent, reasonable, rational, fair and just. I concur with the said conclusion. 10. This R.P.(FC), in these circumstances, deserves to be and is hereby dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC) No. 174 of 2008 -: 6 :-