IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 RPFC.No. 325 of 2010() ---------------------- MC.61/2008 of THE FAMILY COURT, THODUPUZHA .................... PETITIONER/COUNTER PETITIONER: ------------------------------------------------- M.R.RAJU, S/O. RAGHAVAN, AGED 47 YEARS, MULLAMALA HOUSE, MUKKULAM KARA, MUKKULAM EAST P.O., KOKKAYAR VILLAGE, PERUVANTHANAM POLICE STATION. BY ADV. SRI.SHAIJAN JOSEPH RESPONDENT(S)/PETITIONERS: -------------------------- 1. VALSAMMA RAJU, AGED 43 YEARS, W/O. M.R.RAJU, MULLAMALA HOUSE, MUKKULAM KARA, MUKKULAM EAST P.O., KOKKAYAR VILLAGE, PERUVANTHANAM POLICE STATION. 2. RAJEEV, AGED 12 YEARS, (MINOR), REP.BY HIS MOTHER VALSAMMA RAJU, AGED 43 YEARS, W/O. M.R.RAJU, MULLAMALA HOUSE, MUKKULAM KARA, MUKKULAM EAST P.O., KOKKAYAR VILLAGE. ADV. SRI.GEORGE MATHEW FOR R1 & 2 SRI.ANILKUMAR.K.N.PILLAI FOR R1 & 2 SMT.K.V.RAMYA FOR R1 & 2 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.P.(F.C.).NO.325 OF 2010 (A) ----------------------------------- Dated this the 2nd day of September, 2011 O R D E R Revision petitioner is the husband in a proceedings under Section 125 of the Code of Criminal Procedure, for short, the 'Code'. The 1st respondent is his wife and 2nd respondent, his child. In the matrimonial relationship between the petitioner and the 1st respondent, they have two children, the eldest is with the father, and the youngest with the mother. Status of the parties as above was not under dispute, and the only question arising for adjudication in the revision on the challenges raised over the order passed by the court below rests on the quantum of maintenance awarded by that court to the wife and the youngest child. The Family Court Judge has awarded maintenance at the rate of Rs.2,000/- per month to the wife and Rs.1,000/- to the 2nd respondent, child, directing the revision petitioner/husband and father to pay the sum as fixed above. R.P.(F.C.).NO.325/2010 2 Amount so fixed as maintenance to the wife and child is excessive and unreasonable and it requires modification, is the case of the petitioner in this revision. 2. I heard the learned counsel on both sides. In fact, the respondents are represented by a counsel on State Brief arranged by the Kerala State Legal Services Authority. 3. The income potentiality of the petitioner was not properly appreciated by the learned Family Court Judge in fixing the quantum of maintenance awarded to the wife and child, is the submission of the learned counsel for the revision petitioner. Solely on the basis of the admissions made that four rubber sheets were collected four days in a week out of the 100 rubber trees in the property belonged to him the court below has formed a collusion that the revision petitioner is capable of providing the sum fixed as maintenance to the wife and child, according to the counsel. He is maintaining the eldest son, R.P.(F.C.).NO.325/2010 3 meeting all requirements, basic necessities of life including his studies, was lost sight of by the court in awarding such excessive amount, as fixed, to the claimants in the proceedings, according to the counsel. 4. Per contra, the learned counsel, who represented the respondents in the revision would submit that the petitioner is not a labourer, but an agriculturist, and the quantum of maintenance was fixed by the court below taking into account the price of rubber at that point of time, which as of now, has escalated several times. He is also getting income as a taxi driver, is the further submission of the counsel. Though the claim of the wife was resisted setting forth a defence that she was possessed of 50 cents of property, no material thereof was produced to sustain that challenge or even to show that she is capable of generating any income for her own livelihood and also that of her son, the 2nd respondent, who is admittedly under her care and custody. When such be the facts and circumstances R.P.(F.C.).NO.325/2010 4 presented in the case, no interference with the quantum of maintenance awarded by the court below is warranted, according to the counsel. 5. I have gone through the order passed by the learned Family Court Judge to examine whether it suffers from any infirmity with respect to the fixation of quantum of maintenance awarded to the claimants in the proceedings. The learned Judge has taken note of that on the date when the wife appeared, she suffered from physical disablement. If fact, the learned Family Court Judge has noted that she was found to be handicapped. She has a case that she suffered injuries at the hands of her husband and also one Vasanthy, with whom, he is stated to be maintaining an illicit relationship. Whatever that be, whether or not she had suffered injuries, at the time when she was examined before the court, the learned Family Court Judge was satisfied to express an opinion that she is handicapped. It is also noted that she was not then able to walk properly. The evidence in the case R.P.(F.C.).NO.325/2010 5 would also indicate that as an agriculturist, the revision petitioner/husband is attending to nearly 100 rubber trees. His own evidence would show that 50 saplings over and above such trees were also attended to by him. At that point of time, the rubber sheets collected was four, that too, four days in a week. Though the learned counsel for the respondents would canvass for retaining the quantum of maintenance with reference to the price escalation of rubber sheets, the propriety and correctness of the order fixing the quantum of maintenance, no doubt, has to be adjudged with reference to the state of affairs as and when such order was passed by the Family Court Judge. In that context, the materials tendered at that stage by both sides have to be taken into account. It is the admitted version of the revision petitioner/husband that he is taking care of his eldest son spending an amount of Rs.1,500/-. That son, no doubt, is provided a shelter by him. Whereas for the other son, the 2nd respondent herein, and also for his wife, no shelter is provided by the revision petitioner. Maintenance to the wife and children R.P.(F.C.).NO.325/2010 6 should be not only for the provisions of food, commodities etc. but also other basic necessities of life. Where the wife is shown to be incapacitated to work that also should be taken note of with reference to the income potentiality of the petitioner/husband in providing her adequate maintenance for sustenance in life. Irrespective of his agricultural activities, whether or not the revision petitioner is employed as a taxi driver, when he is providing a sum of Rs.1,500/- to his eldest son for his maintenance as claimed by him, for whom he is providing shelter also, it shows that he is having sufficient income to provide the quantum of maintenance fixed by the learned Judge, Family Court to the wife and other child also. So far as the 2nd respondent is concerned, the quantum of maintenance directed to be paid to that child is much less than spent for his eldest child. So far as the wife is concerned, when she is not provided a shelter by the husband, her requirements for basic necessities of life, to take care of herself and also her son, deserve to be duly taken note of. When that be so, I find, there is no impropriety or R.P.(F.C.).NO.325/2010 7 illegality, leave alone, any infirmity in the order of the learned Judge, Family Court, in fixing the quantum of maintenance at the rate of Rs.2,000/- to the wife (1st respondent) and Rs.1,000/- to the 2nd respondent (child) directing the revision petitioner/husband and father to pay such amount as maintenance. Revision is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.P.(F.C.).NO.325/2010 8