IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 RPFC.No. 202 of 2007() ---------------------- MC.575/2006 OF THE FAMILY COURT, MALAPPURAM. .................... PETITIONER/RESPONDENT. --------------------------------------- PANDARATHODIKA MUHAMMED SHAFI, S/O. MOHAMMED, PANDARATHODIKA VEEDU, KOLAPURAM NORTH, A.R.NAGAR P.O. BY ADV. SRI.K.V.GOPINATHAN NAIR RESPONDENTS: PETITIONER. ------------------------ PATTAR PARAMBAN AYSHABI, D/O. UMMERKUTTY, KAMMANGADAVATH, P.O.THIRANGADI, TIRURANGADI TALUK. BY ADV. SRI.K.A.SALIL NARAYANAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 14/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- R.P. (FC) No. 202 OF 2007 ------------------------------------------------- Dated this the 14th day of February, 2008 ORDER This revision petition is directed against an order directing payment of maintenance under Sec.125 of the Cr.P.C. to the claimant allegedly the wife of the petitioner herein. 2. Marriage is admitted. Separate residence is also conceded. The petitioner/husband took up a contention in the counter statement that there has been a valid divorce. Except the word of the mouth of the petitioner that at some prior unspecified point of time divorce had been effected, there was absolutely no evidence to prove such divorce. It is by now trite, after the decision in Shamim Ara v. State of UP (2002 (3) KLT 537 (SC)), that raising of a contention regarding divorce in the counter cannot be equated to divorce either on the date of the alleged divorce or on the date of filing of the R.P. (FC) No. 202 OF 2007 -: 2 :- counter statement. In any view of the matter the court below is eminently correct in coming to the conclusion that the petitioner herein has not succeeded in proving the alleged divorce. The inevitable consequence is that the marriage must be held to be current and continuing. The said contention raised cannot, in these circumstances, succeed. 3. The next contention urged is that the quantum of maintenance awarded is excessive. Rs.1,200/- per mensem is the amount awarded. The petitioner is employed at Andhra Pradesh and the hapless wife is unable to produce any cogent material to show that the quantum of income which the petitioner derives. Inferences of prudence have necessarily to be drawn in these circumstances, and it is thus that the learned Judge of the Family Court came to the conclusion that the husband can be directed to pay an amount of Rs.1,200/- per mensem to the wife. Reckoning the petitioner/husband simply as an able bodied person working in Andhra Pradesh, it must be held that the direction to pay maintenance at the rate of Rs.1,200/- per mensem does not warrant interference. On the basis of the evidence and probabilities about the means of the R.P. (FC) No. 202 OF 2007 -: 3 :- petitioner and the needs of the claimant/wife the said amount fixed by the learned Judge appears to be absolutely justified. The same does not warrant any interference. The challenge fails. 4. This revision petition is accordingly dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge