IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 RPFC.No. 158 of 2004() ---------------------- MC.523/2003 of Family Court, Manjeri .................... : REVISION PETITIONER/RESPONDENT ----------------------------------------------- JAMALUDHEEN, S/O. MARAKKAR @ KUNHIPPU, NARUKKOTTIL HOUSE P.O.ALANALLOOR, ALANALLOOR AMSOM, DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT. BY ADV. SRI.T.K.AJITH KUMAR RESPONDENTS: PETITIONERS ------------------------ 1. MYMOONA D/O. MUHAMMEDASLI, KARKKADAMKUNNAN HOUSE, P.O.VETTATHOOR, (VIA) MELATOOR, MELATOOR AMSOM DESOM, MALAPPURAM DISTRICT. 2. RIYASUDHEEN 14 YEARS (MINOR) S/O. MYMOONA. 3. NABEEL 9 YEARS (MINOR), S/O. MYMOONA. (MINOR PETITIONERS REPRESENTED BY MOTHER/ GUARDIAN 1ST RESPONDENT) BY ADV. SRI.K.M.SATHYANATHA MENON FOR R1 TO 3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.158 of 2004 ---------------------------------------- Dated this the 24th day of June 2008 O R D E R The petitioner in this revision petition assails the direction issued to him under Section 125 Cr.P.C by the Family Court obliging him to pay maintenance at the rate of Rs.1,000/- per mensum to the claimants, his wife aged 33 years and his children aged 14 years and 9 years respectively. Marriage, paternity and separate residence are all admitted. The claimants are not employed. The petitioner is employed as a U.D.Clerk in the Registration department and as per Ext.D1 salary certificate produced by him, he gets a gross salary of Rs.7,601/-. 2. The claim for maintenance of the claimants was sought to be resisted on the ground that the wife has taken up separate residence without sufficient cause. It was further contended that the claim staked at the rate of Rs.1,500/-, Rs.2,000/- and Rs.1,500/- respectively to the three claimants is excessive. The second claimant was sick and was afflicted with heart disease, it was asserted. 3. The wife contended that she is entitled for separate maintenance because of the matrimonial cruelty inflicted on her by the petitioner. The parties went to trial on these contentions. R.P.F.C.No.158/04 2 The first claimant/wife examined herself as PW1. The petitioner examined himself as RW1. Exts.P1 to P10(b) were marked on the side of the petitioner herein. 4. The learned Judge of the Family Court on an anxious evaluation of the evidence tendered on oath by the rival contestants in the light of the other materials produced as also broad probabilities came to the conclusion that the first claimant/wife is entitled for separate maintenance. There were satisfactory materials to indicate that she was justified in residing separately from the petitioner, it was found. In coming to this conclusion, the learned Judge of the Family Court took note of the sequence of events which had taken place in this case including the allegations at an earlier point of time that the husband had inflicted physical cruelty on her on account of which Ext.P2 wound certificate was issued. Later the parties resumed co-habitation and subsequently on 13/5/2003 the next incident took place as a result of which separate residence of the spouses started. The learned Judge also took note of the fact that there was strained relationship between the spouses and that Ext.P8 F.I.R and Ext.P9 final report had been filed by the police against the petitioner herein after investigating into the R.P.F.C.No.158/04 3 allegations raised by the wife. Taking all the relevant circumstances into account, the learned Judge came to the conclusion that the wife's claim for separate residence deserves to be allowed. 5. The learned counsel for the petitioner submits that this finding of the learned Judge is incorrect, grossly erroneous and perverse and the same warrants interference by invocation of the revisional jurisdiction of superintendence and correction. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this court sitting as a court of revision exercising supervisory and correctional jurisdiction. Unless the findings of the facts and the discretions exercised in the matter of preferring evidence is found to be grossly erroneous and such vice in turn leads to miscarriage of justice, the revisional jurisdiction of superintendence and correction shall not ordinarily be invoked. Of course, if the findings are perverse and they lead to miscarriage of justice, such jurisdiction shall be promptly invoked. I have gone through the evidence of PW1 and RW1. I have gone through the documents Exts.P1 to P10(b) and Exts. D1 to D5. Suffice it to say that on an evaluation of all the materials available, I have no hesitation to concur with the R.P.F.C.No.158/04 4 conclusions of the learned Judge of the Family Court that PW1 was justified in her claim for separate maintenance and residence away from the petitioner on the basis of such materials produced. One cannot afford to ignore the fact that she had taken up separate residence along with their children aged 9 years and 14 years from the financial comfort which her husband, a U.D.Clerk in Government service in the Registration Department getting an income of Rs.7,601/- could have offered her. Her evidence, according to me, rhymes better with probabilities and the course adopted by the learned Judge of the Family Court in preferring to accept the evidence of PW1 to that of RW1 does appear to me to be sound, cogent, reasonable, just and fair. The same does not warrant any interference. 6. Coming to the quantum of maintenance awarded, I note that an amount of Rs.1,000/- per mensum awarded to all the three claimants. Ext.D1 document clearly shows that the petitioner's total income per mensum is Rs.7,601/- in 2004. Of course, he has shown that several deductions take place and his monthly income gets reduced and his carry home pay packet is only Rs.1,554/-. Admittedly he has a house of his own though he claims to have sold the house; but continues to reside in the R.P.F.C.No.158/04 5 same house. It is further seen that he has properties measuring 33 cents. Even on his own showing he was embarked on an ambitious attempt to build a very costly house in that plot. In the given circumstances the totality of circumstances must give the court an idea about degree of financial affluence enjoyed by the petitioner. The total monthly salary is Rs.7,601/-. Notwithstanding the fact that huge amounts are seen deducted by way of recovery of loans availed from various sources, I am satisfied that the claimants are entitled to live in a life style which they are used to and consistent with the income of the petitioner who gets a total monthly salary of Rs.7,601/-. The total amounts to be paid to the wife and two children does not even touch the half pay mark in the total salary received by him every month. I am satisfied that the quantum of maintenance does not also warrant interference. 7. This R.P.F.C is in these circumstances dismissed. (R.BASANT, JUDGE) jsr R.P.F.C.No.158/04 6 R.P.F.C.No.158/04 7 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008