IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 RPFC.No. 128 of 2005() -------------------------------- MC.216/2004 of THE FAMILY COURT, KOZHIKODE .................... REVISION PETITIONER/ RESPONDENT: ----------------------------------- P.D. CHACKO @ SAJI SEBASTIAN, S/O. DEVASSIYA, AGED 37 YEARS, PALLITHAZHE HOUSE, KONGADOOR P.O., AYARKUNNAM, KOTTAYAM-686 564. BY ADV. SRI.JOHN VARGHESE RESPONDENT(S): PETITIONER & STATE -------------------------- 1. JESSY CHACKO, D/O. CHACKO AGED 34 YEARS, 11/657, ELAVANCHALIL, KODUVALLY AMSOM DESOM, P.O. KODUVALLY. 2. SON FRANKLIN P.J., (MINOR) 5 YEARS. 3. DAUGHTER KAROLIN P.J., (MINOR) 3 ½ AND HALF YEARS. 4. DAUGHTER KARMALIN P.J. (MINOR) 5 MONTHS. (MINORS 2,3,4, ARE REP. BY MOTHER 1ST RESPONDENT). 5. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 TO R4 BY ADV. MR.JACOB ABRAHAM R5 BY PUBLIC PROSECUTOR MR.BENNY VARGHESE. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N.KRISHNAN,J. ====================== R.P.(F.C) No.128 OF 2005 ====================== Dated this the 1st day of March 2010. JUDGMENT This revision is preferred against the order of maintenance passed by the Family Court Kozhikode in M.C.No.216/2004. The Family Court directed the husband to pay Rs.1,000/- each per mensum as maintenance to three children aged 5 years, 1 and half years and 5 months respectively. The wife is a teacher and the husband is a clerk in the School. The wife is working in Thamarassery with three children and husband is residing at Kottayam. What is the real cause for misunderstanding is still a misery. The Family Court found that though the wife is a teacher she has to engage maid servant for looking after the children and also has to pay rent to reside in the house. Even then the Family Court did not grant maintenance to the wife but granted only maintenance to the children. The husband is a clerk and his income is stated to be Rs.4,857/-, R.P.(F.C) No.128 OF 2005 2 whereas the wife would depose that it is more than Rs.10,000/-. The court blamed the husband for not producing the salary certificate and as an adverse inference granted a monthly maintenance of Rs.1,000/- per month, it may not be really proper to award maintenance amounts by adverse inference. The purport of the legislation is to avoid destitution and it has also to be remembered that paying capacity of the husband is a main criteria in fixing the quantum. The contention that as a clerk, the person is getting more than Rs.10,000/- may not be correct considering the age of the person, for the reason that is not a very senior hand. Since the wife is living for with all the difficulties, including the appointment of a maid servant to look after the children her income may not be sufficient to look after the children properly and when the children are in the growing process the expenses incurred will be more. So, taking note of the entire situation I feel that considering the employment status of the husband and his salary, the amount of maintenance at the rate of Rs.800/- will be R.P.(F.C) No.128 OF 2005 3 justified for the reasons stated with liberty to move under Section 127 Cr.P.C, when there is variations for circumstances. In the result RPFC is disposed of by directing the modification of maintenance awarded to the children from Rs.1,000/- to Rs. 800/- payable from the date of the petition and the mother is entitled to withdraw amount on behalf of the children, if any amount paid shall be given credit. M.N.KRISHNAN,JUDGE. mns