IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 RPFC.No. 292 of 2009() ---------------------- MC.695/2006 of FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER/RESPONDENT: -------------------------------------------------- KOYAMON, AGED 48 YEARS, S/O.ALIKUTTY, YOOSAFINTE PURAKKAL KUTTAYI, MUNNANGADI, VADIKKAL, P.O.KUTTAYI, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.C.V.MANUVILSAN SRI.P.K.KHALEEMUDHEEN SMT.K.VIDYA SRI.M.R.VIBIN RESPONDENTS/PETITIONERS: -------------------------- 1. HAFSATH, AGED 38 YEARS, D/O.HAMZA, KUNHIKANNANTE PURAKKAL HOUSE, AVIYIL BEACH, T.S.NAGAR, PARAPPANANGADI AMSOM DESOM, TIRUR ANGADI TALUK, MALAPPURAM DISTRICT. 2. FATIMA SAHARA, 10 YEARS(MINOR), (MINOR PETITIONER IS REP. BY THE IST RESPONDENT MOTHER). Public Prosecutor : SRI C S HRITHWIK THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.P.F.C.No.292 of 2009 --------------------------------------- Dated this 06th day of August 2009 ORDER Notice to respondents is dispensed with in view of the order I am proposing to pass in this revision which is not prejudicial to him. Heard counsel for petitioner. 2. This revision is in challenge of order dated 13-10-2007 in M.C.No.695 of 2000 of the Family Court, Malappuram directing petitioner to pay maintenance to the respondents, his wife and child at the rate of Rs.2000/- and 1000/- respectively per month. Respondents claimed that petitioner subjected respondent No.1 to cruelty and harassment and she was brutally manhandled on 09-09-2006 following which she was constrained to withdraw to her paternal home. Petitioner neglected and refused to maintain respondents. According to the petitioner, respondent No.1 was leading an immoral life even while staying with him, she had illicit affair with one Siddiq and when that was caught, respondent No.1 withdrew to her house without his knowledge or consent. It is the further contention that brother of respondent No.1 kidnapped respondent No.2 from the school where she was studying. Both sides adduced evidence in respect of their respective contentions. Petitioner gave evidence as RW2. RW1 is the Head Mistress of the school where respondent No.2 is studying. She R.P.F.C.No.292 of 2009 2 stated that respondent No.2 was found missing from the class on 02- 11-2006. RW3 claimed to have seen respondent No.1 and Siddiq coming out of the bathroom in the matrimonial home one day in September, 2006. Learned Judge found that the contention of petitioner that respondent No.1 is leading an adulterous life is not established, that petitioner is reasonably affluent and directed payment of compensation. It is contended by learned counsel that there is sufficient evidence to show that respondent No.1 was leading an adulterous life. 3. Under section 125(4) of the Code of Criminal Procedure a wife who “is living in adultery” shall not be entitled to claim maintenance from her husband. So far as allegation of adultery made by petitioner is concerned, court below has observed that though in his counter petitioner had cited two witnesses to prove the alleged immoral life of respondent No.1, those witnesses were not examined and so far as the person examined as witness (RW3) is concerned, his name does not find a place in that counter. In otherwords, RW3 emerged as a witness only as a result of an after thought. Even the evidence of RW3 is only that respondent No.1 and Siddiq were seen coming out from the bathroom in the matrimonial home some time in September, 2006. Court below observed that from that alone, no interference is possible that there was illicit relation between R.P.F.C.No.292 of 2009 3 respondent No.1 and Siddiq, nor would that amount to respondent No.1 “living in adultery“ which alone disentitled her to claim maintenance. On the facts and circumstances of the case I find no reason to interfere with the finding of the court below. 4. So far as quantum of maintenance awarded is concerned, petitioner is having several business. He is running a grocery shop in his own building. As per the evidence of respondent No.1, in another room in the building petitioner has other business also. He is engaged in copra business as well. It has come in evidence that petitioner is reasonably affluent. Therefore the aggregate sum of Rs.3000/- awarded to the respondents cannot said to be beyond his reach. Respondents, at the time of filing the application were aged 35 and 7 years, respectively. What is awarded is Rs.2000/- and Rs.1000/-, respectively per month which considering their needs and cost of living cannot said to be excessive. I find no reason to interfere with the maintenance awarded, at the instance of petitioner. Resultantly revision petition fails. It is dismissed. THOMAS P JOSEPH, JUDGE Sbna/