IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 RPFC.No. 207 of 2009() ---------------------- MC.233/2006 OF FAMILY COURT, KASARAGOD. .................... REVISION PETITIONER/RESPONDENT -------------------------------------------------- B.M.HASHIM, S/O.P.K.MAMMU, AGED 34 YEARS, KURICHIKUNNU COLONY, BEKKAL, PALLIKKARA VILLAGE, HOSDURG TALUK. BY ADV. SRI.T.V.GEORGE SRI.K.N.BALACHANDRA KAIMAL SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): PETITIONERS -------------------------- 1. M.T.P NAFEESATH, D/O.P.AHAMMED, AGED 27 YEARS, RESIDING AT PADANETHAYAL BAZAR, PADANE VILLAGE, HOSDURG TALUK. 2. M.T.P RAIHANETH, AGED 5 YEARS,(MINOR) REPRESENTED BY ITS GUARDIAN AND MOTHER IST RESPONDENT. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.P.(FC) No.207 of 2009 -------------------------------------- Dated this the 19th day of June, 2009. ORDER Heard counsel for petitioner. 2. Husband against whom an order for payment of maintenance to his second wife and child at the rate of Rs.1,500/- and Rs.500/- respectively per month has come up in revision challenging that order. It is not disputed that respondent No.1 is the second wife of petitioner and that respondent No.2 is the child born in that wedlock. Respondent No.1 was aged 25 years and respondent No.2 was aged 3 years at the time they sought for maintenance in the year 2006. They alleged that petitioner has been subjecting respondent No.1 to physical and mental cruelty and that he neglected and refused to maintain them. Respondent No.1 gave evidence as PW1. According to the petitioner due to disk prolapse he is unable to earn anything and is depending on his first wife for his livelihood. He gave evidence as RW1. To prove the illness he examined RW3, Medical Officer and proved Exts.B1 and B2. Those documents revealed that petitioner had undergone treatment for some time and was discharged on 28.1.2007. Court below accepted the case of respondent No.1 as to cruelty, neglect and refusal to maintain her and child. Court below also found that it is not as if petitioner is incapable of earning due to his alleged illness. Accordingly petitioner was directed to pay maintenance as above stated. RP(FC) No.207/2009 2 That order is under challenge in this revision. Learned counsel contends that there was a valid offer to maintain respondents and hence, respondent No.1 is not entitled to get maintenance allowance. Learned counsel placed reliance on the decision of this Court in Augustine George v. Lizamma Thomas (2009(1) KHC 102). 3. No doubt if the wife has no valid reason to keep away from her husband and deny him conjugal rights she cannot claim maintenance. Evidence of respondent No.1 as PW1 which the court below accepted is that she was subjected to cruelty and harassment. According to her at the time of her marriage with the petitioner, he had suppressed the number of children he had in the first marriage. She was told that there were only two children in the first marriage but later she learnt that petitioner has four children in the first marriage. In response, petitioner contended that respondent No.1 is such a lady that one cannot live with her. Along with that, there was also an offer to maintain her but after contending that himself is living at the expense of his first wife. It is pertinent to note that inspite of the parties living separately for quite some time, there was no effective steps taken by the petitioner to get the company of respondent No.1. In these circumstances I am not inclined to think that the offer made at the fag end to maintain respondents is bona fide. That can only be taken as an attempt to avoid liability to give maintenance allowance. 4. So far as means of the petitioner is concerned, his case is that he is disabled from earning. After consideration of the evidence of RW3 and Exts.B1 and B2, court below observed that there was no such illness as would RP(FC) No.207/2009 3 obstruct the petitioner from earning. Respondent No.1 is a handicapped lady. She has locomotor disability and is unable to do any work. She was aged 25 years at the time of filing the maintenance application. Maintenance awarded is only at the rate of Rs.1,500/- per month to the wife aged 25 years and Rs.500/- per month to the child aged 3 years at the time they sought maintenance in the year 2006. I am not inclined to think that amount awarded is excessive or beyond the paying capacity of the petitioner. I do not find any substance or merit in the revision. Revision petition fails. It is dismissed. Crl.M.A.No.5652 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks