IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RPFC.No. 295 of 2007() ----------------------------------- MC.354/2005 of THE FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/RESPONDENT: ----------------------------------- VELAYUDHAN, S/O. VELU, CORPORATION OFFICE, KOZHIKODE, TOWN PSL. BY ADV. MR.A.SUDHI VASUDEVAN RESPONDENT(S): PETITIONER: -------------------------- LALITHA, W/O. VELAYUDHAN, OTTAKANDATHIL HOUSE, KALIATTIKKAL THAZHAM, CHEMMALATHUR, KUTTIKATTUR. R1 BY ADVS.MR.C.P.MOHAMMED NIAS, MR.SRINATH GIRISH. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.7866/2007 IN RPFC. NO.295/2007 DISMISSED 17/02/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.295 OF 2007 ............................................. Dated this the 17th day of February, 2010. O R D E R This revision is preferred against the order of the Family Court, Kozhikode in M.C.No.354/2005. The revision petitioner namely the husband was directed to pay maintenance at the rate of Rs.1,500/= to the wife and it is challenging that decision, the husband has come up in revision. 2. Heard the learned counsel for the revision petitioner as well as the respondent. It is the case of the wife that the husband has treated her with cruelty and she was forced to leave the matrimonial home on account of that. The husband would contend that the wife was not living a proper life but an adulterous life and therefore she has no right to claim maintenance. In order to deprive a person from claiming maintenance under Section 125 of the Cr.P.C, one of the three grounds has to be established namely the wife is living separately without any reasonable cause (2) she is living in adultery and (3) they are living by mutual consent. : 2 : R.P.(F.C).No.295 OF 2007 The first two conditions can be clubbed together in a case of this nature. When the husband attributes a charge of adultery on the wife, there cannot be a better cruelty than that and under ordinary circumstance, it will be sufficient for a wife to live separately. It is true that adultery cannot be proved by direct evidence in many cases. It cannot be arrived at on the basis of conjectures and surmises also. The only possible method is to collect the entire materials and analyse the materials to arrive at a decision regarding probability of such a case. Mere attribution is not sufficient to discard the same. 3. The learned counsel would contend before me that a compliant was preferred before the police and she has been warned by the police. I do not know why the police has arrived at a decision without materials and that will not be a ground to hold that she is living in adultery. It has to be remembered that the wife is aged more than 45 years and had given birth to 4 children and all of them are married. Therefore I do not propose to disturb the finding regarding absence of evidence to prove adultery and I find that she is : 3 : R.P.(F.C).No.295 OF 2007 entitled to live separately. 4. The next question is regarding the quantum. The learned counsel for the revision petitioner pointed out before me by virtue of Ext.X1 that the carry home salary of the husband is only Rs.1,999/=, that is dated 21.11.2006. Along with the revision, the learned counsel had produced a certificate which would show that the total salary is Rs.7,485/= and the deduction is Rs.4,069/= and the net payable salary is Rs.3,416/=. Annexure A2 is produced to show that from the Calicut Corporation Workers' Co- operative Society he had taken a loan and an amount of Rs.62,000/= is outstanding towards the balance. Over and above this, I find from the case records that he had also produced document showing that he had taken loan from the Housing Board for the purpose of construction of the house. Unfortunately though this document is produced and received in evidence it has not been properly marked. The loan has started on 10.6.2000 and the rate is Rs.1,050/=. It has to be paid in 168 instalments which means 14 years. This is a matter which requires a probe and consideration. : 4 : R.P.(F.C).No.295 OF 2007 Similarly there is a case for the husband that the wife is employed. The wife would contend that she was working in a factory but she has lost that job. The revision petitioner moved an application - I.A.No.1213/2006 requesting the court to summon the documents from the Regional Director of ESI Corporation and the court issued notice but no follow up action is seen taken. It may be also a relevant piece of evidence to show that the wife is also having separate income. It has to be stated as per the argument of the learned counsel for the revision petitioner that the wife is residing in the house constructed by him and he is incurring expense as he is residing in a rented house. So here is a case where the man has taken loans from the Provident Fund, Co-operative Society and the Housing Board and if these are all in connection with the construction and marriage purpose etc, then it may have some bearing on his contention. But if it is otherwise, it may not have. So, it is also a matter that requires consideration by the court below. 5. Therefore the quantum has to be fixed taking into consideration the income of the man, income of the wife, if : 5 : R.P.(F.C).No.295 OF 2007 any, the liabilities of the man and his capacity to pay. So for this purpose, the matter requires remand and therefore I set aside the order of the family court and remit the case back to the family court for fresh consideration after affording equal opportunities to both the parties to produce documentary as well as oral evidence in support of their respective contentions. I make it clear that the interim direction given by the court to pay Rs.900/= per month shall be paid till the disposal of the case. Parties are directed to appear before the court below on 15.3.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 6 : R.P.(F.C).No.295 OF 2007 cl : 7 : R.P.(F.C).No.295 OF 2007