IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 RPFC.No. 126 of 2007() ---------------------- MC.86/2005 of FAMILY COURT, KASARAGOD .................... REVISION PETITIONER/PETITIONER: -------------------------------------------------- B.VISHALAKSHY,AGED 35 YEARS, D/O.NARASIMHA UGRANI,RESIDING AT MASTHIGUDE, PALLIKKARA VILLAGE,P.O PALLIKKARA,HOSDURG TALUK. BY ADV. MR.C.K.SREEJITH RESPONDENT/RESPONDENT: --------------------------------------------- K.SOORYAKANTH,AGED 41 YEARS, S/O.LATE KORAGAPPA,RESIDING AT BARIKKAD, CHITHARI VILLAGE,P.O CHITHARI,HOSDURG TALUK. BY ADV. MR. SRIVINAYAKAN, MR.T.K.VIPINDAS. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== RP(FC) No.126 OF 2007 ===================== Dated this the 8th day of January 2010 ORDER This revision is preferred against the order of the Family Court, Kasargod in M.C.No.86 of 2005. The maintenance petition is filed by the wife against the husband for maintenance. The couple got married in 1986 and they lived together for 18 years with 3 children blessed in the wedlock of which two are daughters and one a son. It is submitted that they were living together till 12.6.2004 on which day she was ill-treated and beaten and thereafter she was even stabbed and it was impossible for her to live in the matrimonial home. She went out of the house for some days and came back and started residing in the husband's house. The husband had contended that he had never ill-treated her and without telling anyone she had left the matrimonial home and started living with one Balakrishnan, who is running a studio where she is working. She resided separately for some months and after filing the case she has been residing at his house separately and therefore she is not entitled to maintenance. In order to deprive a wife of maintenance under Section 125 Cr.P.C. Section 125(4) RP(FC) 126/2007 -:2:- states that if the wife is living in adultery or she refuses to live her husband without any sufficient reason, the court can negative maintenance. The learned Family Court Judge considered the factum of her living with Balakrishnan and also the evidence of RW3 the daughter and came to the conclusion that she is not entitled to maintenance. So far as the relationship with Balakrishnan is concerned, what is stated in the counter statement is that she had left home and was residing with one Balakrishnan who is running a studio. Nothing is pleaded regarding any illicit connection or adulterous relationship between her and Balakrishnan in the counter statement. It is true that materials are there to show that she had gone to Mr.Balakrishnan's house. But that does not by itself would indicate that she was living in adultery with him. Any amount of evidence which is not in the pleading is not a substitute and it cannot be looked into. Therefore the petitioner was living in adultery cannot be found in this case at all. 2. The next question is whether there were sufficient reasons to live her separately. According to the wife, after 3 years from the date of marriage, the husband used to drink and ill-treat her and she had been mercilessly beaten with an iron rod and forcibly dragged her to the road. I had seen the document produced in this case which would indicate that she had suffered severe injuries on her body including multiple fracture in an RP(FC) 126/2007 -:3:- assault on 25.8.2005. It is true that RW3 had given a go bye to what she has stated. RW3 has also spoken about her mother and said that she was living in adultery. When a daughter deposes, that will be best form of evidence which can be looked by the court. Daughters are always more attached to the mothers and they find their shelter under the mother. Here is a case where the daughter gives a statement before police regarding the act of the father and in the process of time, she changes it and stated that she had not said so. According to her, she has stated so only on the force exerted by the mother. One things is definite that the girl is not speaking the truth. Under those circumstances, I have to disbelieve the daughter. Now the sum and substance of the materials would indicate that at least there is an apprehension in the mind of the lay that she will be done away with and therefore she cannot continue the joint residence with the husband and therefore there are grounds for separate living and so her claim for maintenance cannot be said to be ill-conceived, but it is based on materials. Therefore I find that she is entitled to maintenance. 3. Lastly regarding the quantum of maintenance. The husband is a coolie by profession. All the children are living with him and the wife admittedly is not seen very much interested in living with the husband. She is more interested in living with Balakrishnan rather than her family. I feel RP(FC) 126/2007 -:4:- a nominal amount of Rs.500/- is reasonable. Therefore the revision petition is allowed and the order of the learned Family Court Judge is set aside and the petitioner, viz., the wife is granted a maintenance of Rs.500/- from the date of the order of the Family Court, i.e. 18.1.2007. M.N.KRISHNAN, JUDGE Cdp/-