IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 RPFC.NO. 164 OF 2009() --------------------------------- MC.25/2008 OF FAMILY COURT, MALAPPURAM .................... REVISION PETITIONER - RESPONDENT: ------------------------------------------------ THAJUDHEEN, S/O. AYAMUTTI, MOYIKKAL HOUSE, PARIYAPURAM AMSOM DESOM, P.O. PARIYAPURAM, TIRUR TALUK (TANUR POLICE STATION LIMIT). BY ADV. SRI.H.BADARUDDIN RESPONDENT(S) - PETITIONERS: ------------------------------------------ 1. SAJITHA, D/O. KOLLANGATH ABDUL RASAKH, PARIYAPURAM P.O. 676 302, PARIYAPURAM AMSOM DESOM, 2. IRFANUL SULTHAN, 3 YEARS (MINOR), S/O. SAJITHA (REP. BY MOTHER IST RESPONDENT DO...DO... ADV. SRI.K.P.SUDHEER FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P(FC) NO.164 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of June, 2009 O R D E R -------------- Order passed by the Family Court, Malappuram in M.C. No.25 of 2008 awarding maintenance to the respondents at the rate of Rs.1,500/- and Rs.500/- respectively per month is under challenge in this revision at the instance of the petitioner. 2. That, petitioner married respondent No.1 on 30.12.2001 and in that wedlock respondent No.2 is born are admitted. Respondents alleged that petitioner had been subjecting respondent No.1 to matrimonial cruelty, physical and mental and that he neglected and refused to maintain them. According to them petitioner has sufficient means to pay the maintenance. Petitioner denied the allegation of cruelty and harassment and claimed that on account of political enmity towards him, brothers of respondent No.1 have spoiled their family life and at their instance respondent No.1 is living separately without sufficient reason. He offered to maintain respondent No.1 in case she is prepared to go with him. He denied that he has sufficient means to pay maintenance to the respondents. He claimed that he is working in a small cool bar. He filed O.P. No.140 of 2008 seeking custody of respondent No.2 alleging that respondent R.P(FC) No.164 of 2009 -: 2 :- No.1 is not properly looking after the child. Court below recorded evidence in both cases and dismissed O.P. No.140 of 2008 against which petitioner has already preferred an appeal. Petition for maintenance was allowed in favour of respondent No.1 directing the petitioner to pay maintenance as aforesaid. That part of the order is under challenge in this revision. 3. Learned counsel for petitioner contended that court below has not taken into account the offer made by the petitioner to take back respondents. There is no evidence to show that he has subjected respondent No.1 to cruelty or harassment as alleged. At any rate maintenance awarded is excessive. Counsel for respondents supported the order under challenge. 4. While deciding the claim for maintenance for respondent No.2 it is not necessary to go into the question whether petitioner is entitled to get custody of respondent No.2. For, irrespective of the propriety of the custody of the child with respondent No.1, petitioner is bound to maintain respondent No.2 as it is admitted that respondent No.2 is the son of petitioner. However if O.P. No.140 of 2008 is allowed in favour of petitioner in appeal and if ultimately petitioner gets custody of respondent No.2 it is open to the petitioner to R.P(FC) No.164 of 2009 -: 3 :- approach the court below for appropriate relief under Section 127 of the Code of Criminal Procedure. In the circumstances the right of respondent No.2 to get maintenance cannot be disputed in this revision. 5. So far as entitlement of respondent No.1 for maintenance is concerned she has given evidence as P.W.1 as to the circumstances in which she was compelled to stay apart from petitioner. According to her petitioner has illicit relationship with other women and he used to subject her to cruelty. This of course is denied by the petitioner in the counter statement and when examined as R.W.1. But it is a fact that from 2007 onwards petitioner and respondents are living separately. Learned counsel for petitioner tells me that on 8.1.2008 petitioner had issued a registered notice to respondent No.1 demanding her to stay with the petitioner but that notice was returned as unknown at the instance of the brothers of respondent No.1. It is also submitted by learned counsel that the returned notice was actually produced in the court below but not marked in evidence. It is not shown that notice was returned as addressee is not known on account of any act of respondent No.1 or her relatives as alleged by the petitioner. That apart, even as per the submission of the learned R.P(FC) No.164 of 2009 -: 4 :- counsel notice was sent on 8.1.2008 while petition seeking for maintenance was filed on 5.1.2008. 6. It is pertinent to note that while petitioner wanted custody of the child alleging that respondent No.1 is not properly looking after the child, he did not ask for any relief of restitution of conjugal rights in O.P. No.140 of 2008. Therefore it is evident that petitioner really did not want the company of respondent No.1. Court below has considered the evidence and found that respondent No.1 is entitled to separate residence. That finding being on an appreciation of evidence of the parties and so far as it is free from any infirmity it does not require interference in revision. Respondent No.1 is entitled to separate residence and maintenance. 7. Now I shall consider the claim of respondent No.2 who was aged three years at the time of application. Court below awarded Rs.500/- per month to him which cannot be said to be excessive. The amount awarded to respondent No.1 as maintenance is Rs.1,500/- per month. Considering the basic needs and requirements of a woman aged 23 years I am inclined to think that amount awarded is not excessive so as to call for interference in this revision. 8. So far as the capacity of the petitioner to pay maintenance R.P(FC) No.164 of 2009 -: 5 :- is concerned, he admitted that he is working in a cool bar. He also stated that he was working as a mason at the time of marriage. Court below observed that assuming so he is a labourer, in the circumstances prevailing in the State he could earn at least Rs.200/- per day as it is not disputed that he is an able bodied man. It is not as if amount awarded by the court below is beyond the reach or paying capacity of the petitioner. There is no merit in the revision. It failed and is dismissed. THOMAS P.JOSEPH, JUDGE. vsv