IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 RPFC.No.182 of 2011() ------------------------------ MC.83/2010 of FAMILY COURT, KASARGOD .................... REVISION PETITIONER/RESPONDENT : -------------------------------------------------------- KAMALAKSHA, AGED 41 YEARS, S/O. MALINGA NAIK, PARAPPA, POYYAMAJALU HOUSE, ADOOR VILLAGE, URDOOR POST, KASARAGOD TALUK, KASARAGOD DISTRICT. BY ADV. SRI.S.JIJI RESPONDENTS/PETITIONERS : ------------------------------------------- 1. PREMA, AGED 36 YEARS, D/O. SUBBA NAIK, W/O. KAMALAKSHA, UJJAMKODE, MUTTATHODY, KALLAKATTA POST, VIA VIDYANAGAR, KASARAGOD DISTRICT. PIN 671123 2. SOUMYA, AGED 16 YEARS, D/O. KAMALAKSHA, UJJAMKODE, MUTTATHODY, KALLAKATTA POST, VIA VIDYANAGAR, KASARAGOD DISTRICT. PIN 671123 3. SANDHYA, AGED 10 YEARS, D/O. KAMALAKSHA, UJJAMKODE, MUTTATHODY, KALLAKATTA POST, VIA VIDYANAGAR, KASARAGOD DISTRICT. PIN 671123 4. SHWETHA, AGED 9 YEARS, D/O. KAMALAKSHA, UJJAMKODE, MUTTATHODY, KALLAKATTA POST, VIA VIDYANAGAR, KASARAGOD DISTRICT. (RESPONDENTS 2 - 4 ARE MINORS AND THEY ARE REPRESENTED BY THEIR MOTHER RESPONDENT N0.1) PIN 671123 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- R.P.(FC) No.182 of 2011 --------------------------------- Dated this the 29th day of November, 2011 ORDER Respondent in M.C.No.83/2010, a proceeding under Section 125 of the Code of Criminal Procedure, has filed this revision. The respondents/claimants in the proceedings are admittedly his wife and three children. The claimants alleging neglect by the revision petitioner in maintaining them claimed maintenance from the revision petitioner stating that employed as a watchman he is getting monthly emoluments of Rs.9,000/- apart from getting a sum of Rs.3,000/- as income from his property. Resisting the claim he contended that the wife with the children had left his company since he suffered from a skin disease. He also contended that he is having only the employment as a part time watcher in a ladies hostel, that too on daily wages for a period of 15 days a month. The wife is employed as a nursing assistant and thus possessed of sufficient means to look after herself and the children, was the further challenge made to resist the claim. The evidence tendered in the case consisted the testimony of first claimant-wife as PW1 respondent/revision petitioner as RW1, R.P.(FC) No.182 of 2011 2 who also exhibited medical certificate to show that he is suffering from 'Hansei's disease'. The court below on such materials placed, came to the conclusion that the wife has shown justifiable reason to live separately accepting her case of matrimonial cruelty while she lived with her husband. Challenges canvased by the husband to resist the claim of his wife and children, who were found to be not possessed of any means and further shown to be neglected, were repelled, and, he was directed to pay maintenance at the rate of Rs.750/- per month to the first claimant and Rs.500/- each per month to the three children. Propriety, legality and correctness of that order is assailed in this revision. 2. Notice in the revision was served on the respondents, but, they have not entered appearance. I heard the learned counsel for petitioner/respondent. The wife left the company of the husband because he suffered from 'Hansei's disease', a skin disease, is the submission of the learned counsel. D1 certificate produced before the court below is relied by the counsel to show that the husband has such a disease though it has not affected R.P.(FC) No.182 of 2011 3 his vocational activities. No evidence was produced by the wife to prove his income potentiality, and the quantum of maintenance has been fixed by the courts below without any data is the submission of the counsel to contend that the sum fixed as maintenance to the wife and children under the impugned order is arbitrary, excessive and unreasonable. 3. Going through the order passed by the court below and taking note of the submissions made by the counsel, I find that the challenges canvassed to impeach the grant of maintenance cannot be accepted. Even assuming that he is suffering from any skin disease, without better evidence showing as to in what way it has affected his matrimonial relationship with the first claimant, who has given birth to three offsprings to him, the contention raised that she left the company on account of his illness cannot be accepted, especially in a proceeding under Section 125 of the Code to negate the claims of the wife and children. Further more, even if he is employed as a part time watcher only for a period of 15 days, still, as he has the statutory and moral liability to maintain his wife and children he is expected to R.P.(FC) No.182 of 2011 4 generate income for their livelihood. What needs to be looked into is whether he has income potentiality, and not the actual income derived by him when a claim is raised by his wife and children seeking maintenance alleging neglect from him. Where neglect is established, and sufficient reason shown by the wife to live separately from him, the husband even if not having any income, but, no way incapacitated from doing hard labour, is bound to provide reasonable maintenance to his wife and children. Quantum of maintenance awarded to the wife and children Rs.750/- per month to the wife and Rs.500/- each to the three children, is very meagre, and it cannot be considered excessive or unreasonable. Revision lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE ln