IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 RPFC.No. 12 of 2008() --------------------- MC.172/2000 of FAMILY COURT, MANJERI .................... : REVISION PETITIONER/PETITIONER ----------------------------------------------- PANANGADAN FATHIMA, D/O UNNEEN(LATE), PANANGADAN HOUSE, IDIANOOR P.O., KOTTAKKAL-VIA, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENTS: RESPONDENT ----------------------- A.ALIHASSAN @ AAPPA, S/O KUNHAMMED(LATE) ERAYSASSAN HOUSE, OTHUKKUNGAL P.O., MATTATHUR DESOM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 17/01/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ R.P.F.(C) No.12 of 2008 ------------------------------------- Dated this the 17th day of January, 2008 O R D E R This Revision Petition is directed against an order passed by the Family Court, Manjeri rejecting the claim for maintenance filed by the petitioner/wife under Section 125 Cr.P.C. 2. Parties are Muslims. Marriage is admitted. Separate residence is admitted. That the respondent/husband has not been making any payment of maintenance from the year 2000 after separate residence commenced is also admitted. That the respondent/husband has contracted another marriage within one month of their separate residence is also conceded. There is no offer to maintain the claimant/wife separately on any conditions. In these circumstances, the liability for payment of maintenance, if the claimant is unable to maintain herself and the respondent has sufficient means, cannot be and is not disputed. 3. The husband took up a plea that the wife is not a woman unable to maintain herself. He took up a further contention that he is not a person having sufficient means. The claimant examined herself as PW1 and the respondent husband R.P.F.(C) No.12 of 2008 2 examined himself as RW1. Thus virtually there was oath against oath to decide the controversy. 4. The learned Judge of the Family Court on the basis of 2 findings of fact against the claimant/wife came to the final conclusion that the claimant/wife is not a woman unable to maintain herself and is hence not entitled to claim maintenance under Section 125 Cr.P.C. Those findings of fact are i) That the petitioner is shown to have owned an autorickshaw in her name; ii) That she is shown to have an extent of 34 cents of land which is landlocked within the property owned by the husband. 5. The learned counsel for the petitioner submits that the court below did not appreciate the materials available in the proper perspective. The sense of compassion which must exist in favour of the hapless wife who is not divorced and who admittedly is not being taken care of by her husband was not imbibed and evinced by the learned Judge of the Family Court, laments the learned counsel for the petitioner. 6. Detailed arguments have been advanced before me. The oral evidence of PW1 and RW1 have been read over to me. The respondent/husband has admittedly been in employment R.P.F.(C) No.12 of 2008 3 abroad for a long period exceeding 3 decades admittedly. The wife has tendered evidence about his degree of affluence and the properties purchased by him as also the building put up by him. Sans all this oral evidence, no court can afford to ignore the admitted fact that the respondent had been continuing in employment abroad for a period of 32 years at least. An idea about his financial position can readily be gathered from the fact that he, conscious of his own financial position, has voluntarily undertaken on himself the responsibility of a second marriage after the spouses started separate residence. Any reasonably prudent mind is bound to draw an appropriate inference, in this broad background of facts and from the specific evidence tendered by PW1, about the degree of affluence which the respondent must have been enjoying. In these circumstances, I find no merit whatsoever in the contention that the respondent/husband is not a person having sufficient means. 7. Coming to the financial position of the wife, of course there are indications available that there was an autorickshaw in her name. She claims that she is not having any autorickshaw now and that such autorickshaw belongs to her brother and he was running the same. He had disposed of the same. I shall R.P.F.(C) No.12 of 2008 4 assume for the sake of arguments that the said autorickshaw is still available and that the same is being run by her employing someone. I shall also accept the evidence that she can, in law, draw income from the 34 cents of land which is stated to be landlocked within the property of the husband. Even if these 2 circumstances were accepted against the wife, I am certainly of the opinion that she, who is entitled in law to live with the same degree of affluence and convenience which she would have enjoyed if she were living with the husband, cannot be said to be a person who is not unable to maintain herself. Her right and entitlement is to live in the same standard and convenience as she would have been entitled to if she were living with her husband. Adopting that yardstick I am not persuaded to agree that the claimant/petitioner can be held to be a woman who is capable of maintaining herself. She must consequently be held to be entitled to claim maintenance under Section 125 Cr.P.C from her husband who has sufficient means. 8. The contention of the respondent is that the autorickshaw was purchased out of an amount of Rs.65,000/- which he had paid to the claimant. It is now conceded without controversy that a civil decree has been secured by the husband R.P.F.(C) No.12 of 2008 5 for return of the said amount of Rs.65,000/-. Therefore I find no merit in the contention that the husband has provided for the maintenance of the wife by securing an autorickshaw in her name for her maintenance. 9. The short question that now falls for consideration is the quantum of maintenance and the date with effect from which such maintenance can be directed to be paid. Taking all the relevant circumstances into account, I have no hesitation to agree in the given facts and circumstances, that the claimant/petitioner can safely be held to be entitled to an amount of Rs.1,500/- per mensem as maintenance. The materials available about the relative degree of affluence as also the needs of the claimant and the means of the respondent do persuade me to hold that such fixation of maintenance will be absolutely justified even assuming that the claimant has the 2 sources of income referred to earlier. 10. We now come to the date with effect from which the maintenance can be ordered. There was inordinate and hopeless delay in the filing of the Revision Petition - exceeding 1500 days. In the peculiar facts and circumstances of this case, this Court had ordered that the delay can be condoned, but subject to the rider that the petitioner if she succeeds shall not be entitled to claim R.P.F.(C) No.12 of 2008 6 maintenance for the period prior to the filing of the Revision Petition. I am, in these circumstances, satisfied that there can be a direction to the respondent to pay maintenance w.e.f 28.03.07, the date of this Revision Petition. 11. This Revision Petition is allowed. The impugned order is set aside. Direction is issued to the respondent under Section 125 Cr.P.C to pay maintenance @ Rs.1,500/- (Rupees One thousand five hundred only) per mensem to the claimant/petitioner herein. (R.BASANT, JUDGE) rtr/- R.P.F.(C) No.12 of 2008 7