IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 RPFC.No. 199 of 2009() ---------------------- AGAINST ORDER DATED 17.12.2008 OF FAMILY COURT, PALAKKAD IN MC.310/2007. .................... PETITIONER/RESPONDENT --------------------------------- SHAIK MUSTHAFA, S/O.SAIDUMUHAMMED, KAKKATHODE, ELAPPULLY, PALAKKAD. BY ADV. MR.C.RAGHAVAN RESPONDENT(S): PETITIONERS 1 AND 3 ------------------------------------------------ 1. AYSHA, D/O.ALIYAR, THOTTAKKARA, ELAPPULLY, PALAKKAD. 2. SHAJEENA, AGED 16 YEARS (MINOR), D/O.AYSHA OF DO., REPRESENTED BY THE GUARDIAN-MOTHER OF THE IST RESPONDENT. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ R.P.F.C.NO. 199 OF 2009 ---------------------------------------- Dated this the 8th day of June, 2009 ORDER Petitioner/husband has been saddled with liability to pay enhanced maintenance to his wife and one of his daughters under Section 127 of the Code of Criminal Procedure (for short, “the Code”). He is aggrieved and has come up in revision. 2. I heard the learned counsel for petitioner. 3. Respondent No.1 is the wife of the petitioner. To herself and two daughters, learned Chief Judicial magistrate awarded maintenance in M.C.No.99/1992. Wife was awarded maintenance allowance at the rate of Rs.200/- per month while, the daughters were awarded maintenance allowance at the rate of Rs.150/- each per month. This was in the year, 1997. When cost of living went up, they filed M.C.No.26/1997 for enhancement of the monthly allowance. That petition was dismissed, against which they preferred Crl.R.P.No.3/1999 before the Sessions Court. That claim was decided in the Lok Adalath on 12.2.2000 enhancing maintenance allowance for the wife to R.P.(F.C.)No.199/09 2 Rs.250/- per month and to the daughters to Rs.250/- each, per month. After seven years, the wife and the two daughters filed M.C.No.310/2007 for further enhancement as they though that they could not make both ends meet in view of the spiralling cost of living and their increased needs. That application was opposed by the petitioner claiming that he has no sufficient means and that respondents are having sufficient means. The claim on behalf of one of the daughters was resisted on the ground that she has already attained majority, is not a signatory in the application and cannot be represented by the mother. Learned Chief Judicial magistrate found that the said daughter has attained majority, she is not shown to be incapable of earning on account of any physical or mental abnormality and hence she is not entitled to any enhancement. Maintenance allowance for respondent Nos.1 and 2, wife and one of the two daughters was enhanced to Rs.1,000/- each per month. That order is under challenge. Learned counsel contends that respondents have sufficient means, and at any rate, petitioner as a Village man in Kerala Government Service is getting only a take home salary of Rs.2,585/-. 4. So far as the means of respondent Nos.1 and 2 to R.P.(F.C.)No.199/09 3 maintain themselves is concerned, court below found that there is no acceptable evidence in support of the contentions raised. What is available is only the assertion made by the petitioner. That finding required no interference in revision. 5. So far as means of the petitioner is concerned, learned counsel submitted that though a salary certificate of the petitioner was produced in the court below, it was not marked in evidence. However, there is evidence of petitioner that his basic pay during the relevant time was Rs.6,500/-. Learned Chief Judicial magistrate observed that petitioner will be getting 39% DA on that basic pay and another Rs.100/- by way of HRA and hence his gross salary would be Rs.9,135/-. After deductions including contribution to the Provident Fund, his take home salary is Rs.2,585/-. 6. Assuming that his take home salary is Rs.2,585/-, that did not mean that he is incapable of earning. It is not disputed that he is an able bodied man. Even as per the version of the petitioner he has another wife and two children. Necessarily he must be capable of maintaining a parallel family. Provision is incorporated in Chapter IX of the Code for awarding maintenance allowance and its alteration in changed R.P.(F.C.)No.199/09 4 circumstances such as escalation of prices, hike in cost of living, increased needs as the awardee grows up etc, to prevent vagrancy and ameliorate distress. It is the basic responsibility of the husband or the father as the case may be to provide maintenance to his wife or children, subject of course to some just exceptions which the Code itself provides in Chapter IX. The husband or father cannot plead as against a wife or children in distress and in poverty that the pulse his employer has provided to him, or his take home salary after savings or deductions not that much heavy and hence he must be discharged of his responsibility to the wife or children. What the law is concerned with, is not his salary, but his 'means' which should include his ability to raise the necessary funds. I am unable to think that petitioner is unable to raise the required funds. I am unable to think that the enhancement is beyond the capacity of the petitioner. 7. Respondent No.2, it came out was studying in the Xth standard at the relevant time. Considering her requirements including educational expenses I am unable to think that Rs.1,000/- per month for her is excessive. So far as respondent No.1 is concerned, she was aged 38 years when R.P.(F.C.)No.199/09 5 the claim for enhancement was made. Monthly allowance for her has been enhanced to Rs.1,000/- which also in my view is not excessive calling for interference in revision. I do not find any illegality, irregularity or impropriety in the order under challenge requiring interference in revision. Revision petition is dismissed. THOMAS P. JOSEPH, JUDGE Acd R.P.(F.C.)No.199/09 6