IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 RPFC.No. 212 of 2009() --------------------------- MC.148/2008 OF FAMILY COURT, MALAPPURAM. .................... REVISION PETITIONER/RESPONDENT: -- ----------------------------------------------------- CHANDRAN C, S/P. KRISHNAN (LATE) CHAKKINGALTHODIKA, THANNIMOOLA, UPPADA P.O, MALAPPURAM DISTRICT. BY ADV. SRI. U.K. DEVIDAS RESPONDENT/PETITIONER: ---------------------------------------- PRIYA.A.K, D/O.KRISHNAN, AZHIKKATTIL VEEU, THAKARAPARAMB, NILAMBUR P.O, MALAPPURAM DISTRICT. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.P.VENUGOPAL (1086/92) FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 27 /10 /2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK P.S. GOPINATHAN, J. ------------------------------- R.P.(FC) No. 212 OF 2009 -------------------------------------- DATED THIS THE 27TH DAY OF OCTOBER 2009 ORDER --------- The revision petitioner is the respondent in M.C No. 148 of 2008 on the file of the Family Court, Malappuram. The revision petitioner is the husband of the respondent who was the petitioner before the lower court. Respondent herein filed the above petition before the lower court claiming Rs. 5,000/-per month as maintenance u/s. 125 of the Code of Criminal Procedure with an allegation that the revision petitioner married the respondent on 3-4-1996 and from 26-7-2007 onwards she was deserted by the revision petitioner and that she was devoid of any means for her maintenance. Whereas the revision petitioner was getting Rs. 15,000/- per month. 2. Revision petitioner admitted the status of the respondent. But he contended that the respondent was living separate with no good reason and he was prepared to take her back and maintain her and she who was a tailor was earning Rs.3,000/- per month and further submitted that he was a coolie working in a puncture shop and getting only Rs. 60-70 per day R.P.(FC) No. 212 OF 2009 2 and there is no income as alleged in the petition and therefore prayed for dismissal of the petition. 3. The respondent was examined as PW1 and Exts.P1 and P2 were marked on her side. The revision petitioner was examined as RW1. The lower court on appraisal of evidence arrived a finding in favour of the respondent. Consequently,the revision petitioner was directed to pay monthly maintenance @ Rs. 3,500/- to the respondent. 4. Assailing the legality, correctness and propriety of the said order this revision petition was filed. 5. The learned counsel on either side were heard and perused the records. According to the learned counsel for the revision petitioner, the respondent had been living separate without any cause. Revision petitioner is prepared to take her back and maintain and since the respondent is living separate with no good cause, she is not entitled to get separate maintenance. On the other hand, the learned counsel for the respondent would contend that the revision petitioner married his uncle's daughter Jayamohini and the respondent is not prepared to reside with the revision petitioner. Going by the R.P.(FC) No. 212 OF 2009 3 order impugned, it is seen that other than the offer to take her back, revision petitioner has not taken effective steps for resuming the cohabitation. Revision petitioner had'nt even sent a notice demanding the respondent to cohabit. Neither any petition for restitution of conjungal rights was filed. Such being the factual background, the offer in court to take the respondent and to maintain her lacks bonafide and sincerity. In the above circumstances, I find that the lower court rightly arrived a conclusion that the revision petitioner had deserted the respondent and therefore, she is entitled to get separate maintenance. 6. Though the revision petitioner has got a case that respondent had been earning Rs. 3,000/- per month from tailoring work, there is no nothing to support the evidence of RW1 to establish that the respondent is having any independent source of income or that the respondent has sufficient income for her maintenance. Though the revision petitioner contended that he is only a coolie working in a puncture shop and drawing Rs. 60-70 per day, he admitted in the cross examination that he owned a motor cycle bearing registration No.KL 10J 3023 and he R.P.(FC) No. 212 OF 2009 4 had been coming to the Court on the motor cycle. It is also revealed that he had been managing two rubber works in the name of C.N. Tyre resoling and M/s. Chandra Tyre Works. He had applied for licence to run a 6 HP motor for the tyre work. He had a land phone as well as mobile phone. It is also revealed by Ext.P1 that the revision petitioner had been paying Rs. 600/- as professional tax for half year. On the basis of the professional tax that he pays, his income would be in between Rs. 60,000/- – 75,000/- in a half year. The evidence of RW1 that he is earning only Rs. 60-70 per day is not at all correct. The income of the revision petitioner per month shall be between Rs.10,000/- and Rs. 12,500/-. PW1 had deposed that for her monthly maintenance Rs. 3,000/- is required. That evidence appears reasonable. But the trial court awarded maintenance at Rs. 3,500/-. Having taken into account of the entire evidence on record and the value of the essential commodities and the status of the parties, I find that, monthly maintenance at the rate of Rs. 3,000/- would be just and appropriate and is within the means of R.P.(FC) No. 212 OF 2009 5 the revision petitioner. In the result, the revision petitioner is allowed in part. While confirming the order granting maintenance quantum is reduced to Rs. 3,000/- from 3,500/-. The learned counsel for the revision petitioner submitted that he closed the establishments run by him and obtained certificate from the local authorities. But no document was produced. In the event there is any change of circumstance subsequent to the order of the trial court, it is for the revision petitioner to apply before the trial court under Section 127 of the Code of Criminal Procedure for alteration. The amount if any paid during the pendency of proceedings shall be given credit. P.S. GOPINATHAN JUDGE PKK