IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 WP(C).No. 1240 of 2008(S) ------------------------- I.A.NO.2046/2006 IN MOP.938/2006 of FAMILY COURT, PALAKKAD .................... PETITIONER: ------------ R.ANIL KUMAR, S/O.RADHAKRISHNAN, AGED 35 YEARS, RAKESH VILLA, COLLEGE ROAD, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS: ------------- RANI K.K., D/O.C.KRISHNAN NAIR, KALAMBUZHA KALAM, SHYAM NIVAS, VADAKKANTHARA, PALAKKAD. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1240 of 2008(S) A P P E N D I X PETITIONER'S EXTS: EXT.P1 TRUE COPY OF M.O.P NO.938/2006 OF THE FAMILY COURT, PALAKKAD. EXT.P2 TRUE COPY OF I.A.NO.2046/06 FILED BY THE RESPONDENT BEFORE THE FAMILY COURT EXT.P3 TRUE COPY OF THE SALARY CERTIFICATE OF THE PETITIONER. EXT.P4 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER TO EXT.P2 APPLICATION. EXT.P5 TRUE COPY OF THE ORDER DATED 07/09/2007 IN I.A.NO.2046/2006 IN O.P.NO.938/2006 OF THE FAMILY COURT, PALAKKAD. \\TRUE COPY// P.A.TO JUDGE P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C).No.1240 of 2008-S ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 17th day of September, 2008 J U D G M E N T J U D G M E N T RAMAN, J. Ext.P5 is an order passed by the Family Court, Palakkad in I.A.No.2046/2006 in O.P.No.938/2006 directing the writ petitioner herein to pay maintenance at the rate of Rs.1,500/- per month as pendente lite maintenance. The main O.P is for divorce filed by the husband against the wife. It is in the said main O.P that the wife filed the above I.A for interim maintenance. The main argument raised by the learned counsel appearing for the petitioner is that the wife is also employed, as a L.P school teacher in an unaided school, which aspect is not considered by the court below. He took such an averment in the counter affidavit, Ext.P4 and contended that no reply denying the said averment was filed by the respondent herein. Besides it is contended that though no evidence was adduced by either side, the fact remains that the petitioner is only a salesman. But the learned counsel appearing for the respondent rightly points out that the averment made in the counter affidavit is that he is a Sales Manager and not a salesman. Though the petitioner has produced Ext.P3 salary certificate, we do not think in the absence of the said certificate produced, marked and properly cross-examined by the other side, the same could be acted upon by this Court in a writ petition W.P.(C).NO.1240/2008 -:2:- filed under Article 226 of the Constitution of India, that too against an order passed by the court below in an interim maintenance application. However, we find that neither side has adduced evidence except filed an affidavit and what exactly is the salary paid or payable to the petitioner herein has not been brought out on record. So also there is no evidence regarding as to whether the respondent is employed as a L.P school teacher. But there is an averment in the counter affidavit that the respondent is employed as a teacher in a school and there is no reply to that effect. Consideration ought to have been given to that averment by the court below. In the absence of any evidence adduced by either side, fixation of Rs.1,500/- per month as pendente lite maintenance is a matter which requires reconsideration. 2. We are not however expressing any opinion as to whether the amount fixed by the court below is on the higher side or the lower side. We only say that there is no acceptable evidence to show what exactly is the salary of the petitioner. Since the petitioner himself has produced Ext.P3 only in this petition, we think it appropriate that an opportunity should be given to both sides to adduce evidence with regard to the respective stand they have taken and the court below shall pass fresh orders after adverting to the evidence on record and refixing the pendente lite maintenance. The amount of Rs.20,000/- was paid towards W.P.(C).NO.1240/2008 -:3:- maintenance as ordered by this court. We direct a further amount of Rs.9,000/- also to be paid within three weeks from today. Post the case for appearance of the parties before the family court on 14/10/2008. The family court shall dispose of the matter afresh as directed above expeditiously and at any rate within a further period of two months. In case the amount of Rs.9,000/- is not paid within the aforesaid period of three weeks, the petitioner will lose the benefit of this order and the writ petition will stand dismissed on that ground. The writ petition is disposed of as above. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms