IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 RPFC.No. 140 of 2005() ---------------------- MC.345/2001 of Family Court , Ernakulam .................... PETITIONER/PETITIONER -------------------------------------- RADHA, W/O.SAHADEVAN, AGED 54 YEARS, CHAKKALAPARAMBIL, AMRUTHA KALALAYAM, MUTTAR, MANJUMMAL P.O. BY ADV. SMT.NAINA RAJI NAIR SRI.M.J.JOHNSON RESPONDENTS: RESPONDENT ----------------------- SAHADEVAN V.A., AGED 38 YEARS, CHAKKALAMA PARAMBIL, MANJUMMAL P.O. BY ADV. ADV.V.SIVARAJAN PUBLIC PROSECUTOR ADV.SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` R.P.F.C. No. 140 OF 2005 ```````````````````````````````````````````````````` Dated this the 6th day of March, 2008 O R D E R This revision petition is directed against an order passed under section 125 Cr.P.C. by the Family Court rejecting the claim for maintenance of the petitioner/claimant wife. 2. Marriage is admitted. That the spouses are residing separately is not disputed. It is admitted that the respondent husband was employed earlier as Charge man in the FACT. He has admittedly retired on superannuation by now. The separate maintenance was claimed on account of alleged cruelty of the husband and his relatives, it was contended. There was an agreement at the police station whereunder an amount of Rs.2,000/- per month was agreed to be paid by the respondent. Parties went to trial on these contentions. The claimant wife examined herself as PW1 and R.P.F.C.No.140/05 : 2 : proved Exts.A1 and A2. The respondent herein examined himself as RW1. The learned Judge of the Family Court came to the conclusion that the wife is not entitled for separate maintenance as she has spurned the offer by the husband to maintain her on condition that she lives with him. 3. The learned counsel for the petitioner has been heard. The respondent was served. There is no representation for the respondent. The short question is whether the conclusion of the learned Judge of the Family Court that the claimant wife is not entitled for separate maintenance is correct or not. According to the claimant, she was driven out of the house of her husband and she was compelled to take up separate residence. She relied on Ext.A1 which is the extract of the petition maintained at the local police station. The claimant relied on the said document to assert that her husband had agreed to pay Rs.2,000/- per month to her as monthly maintenance. She relied on Ext.A1 to press the contention that her husband had also wanted her R.P.F.C.No.140/05 : 3 : to take up separate residence. The present offer was not made bona fide at all, contends the learned counsel for the petitioner. The learned Judge of the Family Court erred grossly in not adverting to the aspect that the offer is not bona fide and is urged only to somehow avoid the liability to pay maintenance under section 128 Cr.P.C. The learned counsel for the petitioner further points out that the contention raised by the husband that he is not bound by Ext.A1 falls to the ground when he consider the unambiguous admission made by him in the course of cross examination. In these circumstances, it is prayed that the impugned order may be set aside and there can be a direction to pay maintenance to the petitioner. 4. I have considered all the relevant inputs. Marriage is admitted. Separate residence is also conceded. Ext.A1, which the respondent husband admits and accepts unambiguously in the course of cross examination, very clearly shows that the wife had valid reason to justify her R.P.F.C.No.140/05 : 4 : separate residence. The husband agreed in the box that he had signed Ext.A1 fully conscious of all implications. That shows that he was prepared to pay separate maintenance to his wife. I do further note that though the claimant does not accept the same, it is the specific case of the husband/respondent that he has been paying amounts due under Ext.A1 agreement from time to time to the wife. All these indicate that an attempt made by now to contend that there is a bona fide offer to maintain the wife on condition that she lives with him is without any bona fides. I agree with the learned counsel for the petitioner that the totality of circumstances available in the case considered in the light of Ext.A1 must eloquently convey that there was absolutely no bona fide offer to maintain the wife on condition that she lives with him. Her explanation that it was because of ill treatment and cruelty that she was forced to leave her matrimonial home and her husband also wanted her remain separate by agreeing in Ext.A1 to pay maintenance to her does appear to R.P.F.C.No.140/05 : 5 : me reasonable and acceptable. 5. There was some evidence to show that the wife had remained in a hostel run by Matha Amruthananthamayi and her expenses were being met by the said institution. That they were maintaining the petitioner as an orphan or destitute is not a reason to contend that the wife is not unable to maintain herself and that she is not entitled for maintenance from her husband. 6. Lastly and finally, the question arises as to what could be the reasonable amount of maintenance. Rs.2,000/- per month, it is now evident from Ext.A1, was agreed to be paid as monthly maintenance. It is the admitted case of the husband that he is getting pension. He claims that he gets only an amount of Rs.1,900/- by way of pension. But he has not chosen to adduce any evidence in support of such an assertion. I am satisfied, taking all the relevant circumstances into account, that the petitioner claimant can be held to be entitled for payment of maintenance at the rate of Rs.1,000/- R.P.F.C.No.140/05 : 6 : per month from this date. Considering the fact that the husband is a retired person, I am satisfied that maintenance can be ordered to be paid at a lesser rate from the date of the petition. The petitioner shall hence be entitled for payment of maintenance at the rate of Rs.500/- per month from the date of the M.C. to this date. 7. In the result: (a) This revision petition is allowed. (b) The impugned order is set aside. (c) Direction is issued to the respondent to pay maintenance to the claimant wife/petitioner herein at the rate of Rs.500/- per month from the date of the petition to this date and at the rate of Rs.1,000/- per month from this date. (R.BASANT, JUDGE) aks