IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 RPFC.No. 127 of 2006() ------------------------------ AGAINST ORDE DTD. 20.3.2006 IN MC.124/2002 of THE FAMILY COURT, THIRUVANANTHAPURAM. .................... REVISION PETITIONER (S) COUNTERR PETITIONER IN MC. --------------------------------------- RAJAN, S/O.SADANANDA PANICKER, RAJA NIVAS, MADHAVAPURAM, VELI, KADAKAMPALLY VILLAGE, THIRUVANANTHAPURAM. BY ADV. MR.B.JAYASURYA RESPONDENT(S): PETITIONER IN MC. AND STATE -------------------------- 1. SREERANJINI.S., THAZHATHUVILAKATHU VEEDU, EDAGRAMAM, KARUMAM, NEMOM VILLAGE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.BENNY VARGHESE THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MA. NO.5800/2006 IN RPFC. NO.127/2006 DISMISSED 27/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... R.P.(F.C).No.127 OF 2006 ............................................. Dated this the 27th day of January, 2010. O R D E R This revision is preferred by the husband against an order passed by the Family Court, Trivandrum in M.C.No.124/2002. I did not have the assistance of the counsel. Therefore I had perused the records and proceed to pass the following order. 2. The wife has approached the family court in 2002. She is a divorced wife and she is claiming maintenance from her former husband. By virtue of the definition under Section 125 wife includes a divorced wife as well and she is entitled to maintenance still she is remarried. There were matrimonial proceedings between the husband and wife as O.S.No.337/1993 and O.P.No.543/1993. It is stated therein that there was an order for recovery of the gold ornaments and for payment of maintenance allowance at the rate of Rs.300/= per month. But it was restricted from the date of suit till the gold ornaments are surrendered or its value was given. So, the husband resisted the claim on the ground : 2 : R.P.(F.C).No.127 OF 2006 that there was already an order passed by the competent civil court and therefore a petition under Section 125 will not lie. It was accepted by the court below and the wife moved a revision before the court as R.P(Family Court) No.54/2005. In R.P.(Family Court)No.54/2005 a learned Judge of this Court held that the family court judge has to consider the claim uninfluenced by the decree in O.S.No.337/1993 or the order in E.P.No.69/1996. There was a specific direction that the claim under Section 125 Cr.P.C shall be considered on merit and appropriate orders shall be passed. So, there was a mandatory direction given by this Court to consider the maintenance application on merit uninfluenced by the decree in O.S.No.337/1993. The revision petitioner herein had by his conduct made that order to become final and therefore the matter went back to the family court and the present order is passed. Now the husband cannot be hard to say regarding the maintainability of Section 125 of Cr.P.C. So, the said contention is not accepted. 3. Now turning to the quantum. It is contended that : 3 : R.P.(F.C).No.127 OF 2006 the wife is living with another man called Chandrasekharan Nair. But there is no evidence to prove the same and being a divorced wife, the husband cannot raise the plea of adultery as well. Even the alleged unchastity is not established by any convincing evidence. That also cannot be found in favour of the husband. The husband had produced a disability certificate which would show that the revision petitioner is having lumbosacral strain with lumbar spondylosis. It is submitted that he is incapable of doing hard work. But at the same time it is no where stated that he is incapable of doing any work and he has got legal duty to maintain his divorced wife. It is true that the court below did not accept the evidence regarding money lending or other aspects to fix the income. But after taking into consideration the fact that he is not totally disabled and is capable of doing some work, the court below fixed a minimum maintenance amount of Rs.500/= per month with effect from 19.4.2002 which cannot be said to be on the higher side. Therefore I do not find any ground to interfere with the : 4 : R.P.(F.C).No.127 OF 2006 revision and so it is dismissed. It is made clear that any amount paid that shall be given credit to and the balance alone is recoverable. M.N. KRISHNAN, JUDGE cl : 5 : R.P.(F.C).No.127 OF 2006