IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 RPFC.No. 91 of 2007() --------------------- MC.360/2005 OF THE FAMILY COURT, KASARAGOD. .................... REVISION PETITIONER ------------------------------------ 1. SUHARA, W/O.KUNHALI, D/O.MOHAMMED KUNHI, THOTTIYIL, PALLIPUZHA, PALLIKKARE VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. KAIRUNNISA,D/O.KUNHALI, (MINOR REPRESENTED BY GUARGIAN MOTHER, PETITIONER NO.1) BY ADV. SRI.T.B.SHAJIMON RESPONDENTS: ------------- KUNHALI,S/O.ABDUL RAHMAN, BENDICHAL HOUSE,NEAR BENDICHAL U.P.SCHOOL, BENDICHAL, POST THEKKIL, KASARAGOD TALUK. BY ADV. SRI.T.MADHU FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. --------------------------------------------- R.P.(FC)No. 91 of 2007 ------------------------------------------------- Dated this the 5th day of September, 2008 ORDER The petitioners have come to this Court with this revision petition aggrieved by the order passed under Sec.125 Cr.P.C. by the learned Judge of the Family Court. They are aggrieved by the rejection of the claim for maintenance of the 1st petitioner/wife and the meager amount (Rs.750/- per mensem) awarded by the learned Judge to the 2nd claimant/child. 2. Marriage is admitted. Paternity is not disputed. Separate residence is also conceded. There is an offer by the husband that he is willing to maintain the claimant/wife on condition that she lives with him. The claimant/wife resisted that the offer with the plea that she is subjected to mental and physical cruelty at the matrimonial home. The husband was employed abroad. She was left at the husband's house. She R.P.(FC)No. 91 of 2007 -: 2 :- had to suffer cruelty at the hands of his relatives. She went back to her house on occasions. After the husband returned, the husband also indulged in the acts of cruelty against her. She was, in these circumstances, compelled to leave the matrimonial home shortly after the arrival of the husband in India. 3. The husband resisted the theory of cruelty. According to him, the wife had left his residence only because she was unwilling to stay with him and look after his aged mother. The first claimant mother was sick. There was no other female member in her house and therefore her relatives wanted her to be present in her parental home. That is why she left him and went to her parental home. 4. Parties went to trial on these contentions. There was only the interested testimony of the claimant/wife as P.W.1 and the husband as R.W.1. Exts.B1 series were marked on the side of the respondent/husband. 5. The learned Judge of the Family Court on an anxious consideration of all the relevant inputs sailed to the conclusion that the wife was not justified in taking up separate residence. It was concluded that she was hence not entitled for separate maintenance. She had not shown sufficient grounds to justify such separate maintenance, it was concluded. So far as the child R.P.(FC)No. 91 of 2007 -: 3 :- is concerned, an amount of Rs.750/- per mensem was awarded. 6. The learned counsel for the petitioner, first of all, contends that, in any view of the matter, the amount of Rs.750/- per mensem awarded to the child is grossly inadequate and perverse considering the needs of the 2nd claimant, a child aged about 3 ½ years when the petition was filed in 2005. The said amount deserves to be enhanced considering the means of the respondent and the needs of the child. 7. So far as the claim of the wife is concerned, the counsel contends that the learned Judge of the Family Court erred grossly in not taking into account the broad and reasonable probabilities of the case. The learned counsel for the petitioner, in particular, contends that admittedly the husband had gone abroad. Even during that time the wife was residing at her matrimonial home. Though there is an allegation that she used to return to her residence, even the oral evidence of the respondent as RW1 indicates that the wife was residing in the house of the husband when he was abroad and she used to return at times to her house on lame excuses. According to the husband, he had gone abroad on 5.2.04 and had returned on 18.05.05. 8. The wife admittedly leaves the matrimonial home shortly R.P.(FC)No. 91 of 2007 -: 4 :- after the arrival of the husband from his place of employment abroad. It is the common case that the wife had left the matrimonial home shortly after the husband returned after such a long period of residence abroad. He had gone abroad on 5.2.04. He returned only on 18.05.05. According to the husband, the wife left the matrimonial home two days after he arrived; whereas, according to the wife, she left about 13 days after the husband returned from his place of employment abroad. 9. The spouses were in the pink of their health. They were blessed with a child. The husband was returning after about 15 months of life abroad. If the wife should leave the company of the husband, under such circumstances it is reasonable and normal to assume that there must have been some reasons. While the claimant/wife alleges that the cruelty inflicted on her by the husband who joined his relatives to torment the claimant/wife was the reason that prompted her to return, the husband wants to contend that she left the matrimonial home for no purpose at all and it was only because she was unwilling to attend on his old and ailing mother that she went away. Probabilities have to to assessed. I have no hesitation to agree that on the scales of probabilities the version of the petitioner R.P.(FC)No. 91 of 2007 -: 5 :- heavily out ways the version of the respondent/husband. The learned Judge of the Family Court does not appear to have adverted to this crucial input that is available at all and it is hence that I choose to come to the conclusion that the final decision of the learned Judge of the Family Court that the wife had withdrawn from the society of the husband for no valid reason whatsoever is incorrect; nay grossly erroneous and perverse. No reasonable person could have attempted to resolve the controversy satisfactorily without taking note of this very crucial circumstance which unfortunately appears to have escaped the pointed and revetted attention of the learned Judge of the Family Court. I have no hesitation to agree that on the touch stone of probabilities the evidence of PW1 about the circumstance which compelled her to start separate residence must have been accepted by the court below. For such gross error committed, I am satisfied, that the finding of fact rendered by the trial court does warrant interference. 10. The learned counsel for the respondent submits that a petition filed by the wife for divorce under the Dissolution of Muslim Marriage Act has been rejected by the Family Court and an appeal against the same is pending. A copy of the order has been placed before me for my perusal. That order only takes R.P.(FC)No. 91 of 2007 -: 6 :- the view that the wife is not entitled for divorce on the ground of cruelty under the Dissolution of Muslim Marriage Act. At any rate, I am not satisfied that the said finding which has not become final yet can, in any way, help the petitioner to avoid the liability to pay maintenance to his wife. 11. I now come to the quantum of maintenance that deserves to be ordered. I take note of the fact that the petitioner has not advanced any specific version about his employment or income whereas the claimant/wife has advanced her version to say that he is profitably employed and engaged and has a handsome income. So far as the claimants are concerned, there is no contention even that they have any income to support themselves. The husband was employed abroad earlier. There is nothing to show that he is not an able bodied person. I am satisfied that reasonable amounts informed in the totality of circumstance, can be directed to be paid. 12. Considering the materials available about the needs of the claimant and the means of the respondent, I am satisfied that it is absolutely reasonable and just to direct payment of an amount of Rs.1,500/- per mensem to the 1st claimant/wife and an amount of Rs.1,000/- per mensem to the 2nd claimant child. The challenge in this revision succeeds to the above extent. R.P.(FC)No. 91 of 2007 -: 7 :- 13. In the result: (a) This Revision petition is allowed; (b) The impugned order is modified. In supersession of the directions issued in the impugned order, the respondent is directed under Section 125 Cr.P.C to pay maintenance to claimants 1 and 2 at the rate of Rs.1,500/- and Rs.1,000/- per mensem respectively from the date of the impugned order, i.e. 20.12.2006. I make it clear that towards this liability, no payment made prior to 20.12.06 shall be credited. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge R.P.(FC)No. 91 of 2007 -: 8 :-