IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 RPFC.NO. 525 OF 2007() ----------------------------------- MC.231/2005 OF FACMILY COURT, KANNUR .................... REVISION PETITIONER/COUNTER PETITIONER. ------------------------------------------------------------------ P.ARAVIND, AGED 55 YEARS, S/O. S.A.KUNHIRAMAN NAMBIAR, X/346, KEERTHANAM, CHEVARAMBHALAM P.O., KOZHIKODE - 673 017. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENT(S): PETITIONER. -------------------------------------------------- S.A.KUNHIRAMAN NAMBIAR, AGED 85 YEARS, S/O. LATE K.V.NARAYANAN NAMBIAR, SWAROOPATHIL ANAPPALLI HOUSE, ATHIYADAM, PAZHAYANGADI P.O., KANNUR - 670 303. ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P(FC) NO.525 of 2007 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of July, 2009 O R D E R -------------- The father at a time when he had crossed 70 years claimed maintenance from his son alleging that he has no means to sustain himself. Petitioner, son contended that father in the youthful days went in search of his own pleasure leaving himself and his younger brother to the mercy of their maternal grand father and never cared for them. Petitioner studied in Mahatma Gandhi College, Thiruvananthapuram but according to him, he had to discontinue his studies since he had no money to pursue his study. It is also his case that he had to continue his studies elsewhere with much difficulties and after completion of his studies he got employment in the Central Excise. He says that before he got employment, he had to go for manual work at Bombay. He claimed that father has other children also in his first marriage as well as second marriage, but they all have been spared and he has been singled out for claiming maintenance. Both sides adduced evidence. Learned Judge of the Family Court found that petitioner is bound to maintain his father and directed him to pay maintenance at the rate of Rs.1,200/- per month. That order is R.P(FC) No.525 of 2007 -: 2 :- under challenge in this revision. Learned counsel for petitioner contended that on the facts and evidence there was no justification in the court below directing petitioner to pay maintenance. It is also contended that respondent, father has sufficient means to maintain himself. Counsel for respondent supported the findings of the court below. 2. In the wedlock between respondent and mother of petitioner three children were born – two sons including petitioner and a daughter. It is not very much in dispute that at a time when petitioner was aged 10 years and had a younger brother, respondent went to Singapore with his wife (mother of petitioner) putting petitioner and his younger brother in the care and custody of their maternal grand father. While so in the year, 1996 respondent returned to his native place (mother of petitioner died while she was at Singapore). After sometime he married another lady and a son is born in that wedlock. That lady was divorced by respondent when he was aged 74 years according to the respondent, as she wished that. It is not in dispute that petitioner is working in the Central Excise and his daughter is studying in a private Medical College at Karnataka. 3. Assuming that there was lack of love and affection on the R.P(FC) No.525 of 2007 -: 3 :- part of respondent towards the petitioner sometime back, that is not a ground for petitioner to disown his liability under law to pay maintenance to the respondent if the latter is not capable of maintaining himself. Exhibits A1 to A6 series show that respondent is undergoing treatment in his old age and as per Ext.A7, pass book respondent had Rs.10,000/- in his account in the year 2004. Exhibit R1 is the copy of the document in the name of respondent produced by the petitioner to show that he has 12 cents of land. I find from the evidence of respondent that Ext.R1 was not put to him but he admitted in cross-examination that he is staying in 11.5 cents of land which according to him belonged to his tarwad which is a trust. It is not shown that the said property is fetching any income. Another document now produced in this revision is Annexure A1 (this document was not produced in the court below). That is copy of a partition deed executed on 3.10.2006 with respondent and his daughter in the first marriage as executants and making petitioner also a party though the latter has not signed the document. As per that partition deed 8 cents of land belonging to the first wife of respondent (mother of petitioner) was partitioned between petitioner, respondent and his daughter (in the first marriage). As per that partition eight cents and two small R.P(FC) No.525 of 2007 -: 4 :- houses were allotted to the share of respondent and his daughter while one cent was allotted to the petitioner. When examined in the court below on 1.10.2006 respondent has stated that he has no other property in his possession. Assuming that Annexure A1 property is with respondent it is not shown that it fetched any income so that respondent could sustain himself by such income. It has been held that what is relevant for consideration under Section 125(1) of the Code of Criminal Procedure is not ownership or possession of some land but the income that is derived therefrom. Respondent denied that he is getting any pension and there is also no evidence in that line. He stated that after returning from Singapore he worked in a sugar factory as Personal Assistant to the Manager Director at Bombay. At that time he was getting Rs.16,000/- per month but he is not getting any pension. I may say that there is no evidence to show that respondent is getting any pension. In these circumstances there is no reason to interfere with the finding of the court below particularly considering the old age of respondent and the fact that he is undergoing treatment as evidenced by Exts.A1 to A6 series that respondent is able to sustain himself without financial assistance from others. R.P(FC) No.525 of 2007 -: 5 :- 4. So far as capacity of petitioner is concerned, he has not produced any document to show his monthly income. Concededly he is in his 50’s and working in Central Excise. His daughter is studying in a private Medical College . Therefore in the normal course it can be taken that petitioner is having sufficient means. 5. What is awarded as maintenance to the respondent is only Rs.1,200/-. Respondent in his old age has to take care of basic needs such as food, clothing, medicines, shelter and all other necessities. I am not inclined to think that what is awarded is excessive or beyond the capacity of petitioner. I find no reason to interfere with the order under challenge. Revision is without merit and is liable to be dismissed. Revision Petition is dismissed. Amount if any deposited by petitioner in the court below can be withdrawn by the respondent and adjusted towards arrears if any payable. THOMAS P.JOSEPH, JUDGE. vsv