IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 RPFC.No. 105 of 2008() ---------------------- AGAINST THE ORDER DATED 03/12/2007 IN CMP.1251/2006 IN MC.268/2004 of Family Court, Kozhikode .................... : PETITIONER/PETITIONER: --------------------------------------- MADATHIL ABDUL RASHEED, S/O. UMMAR, SIVAPURAM AMSOM, KARUMALA DESOM, KOYILANDY TALUK. BY ADV. SRI.R.PARTHASARATHY RESPONDENTS: RESPONDENTS: ------------------------- 1. KUNDULLA KANDATHIL SAHIRA, D/O.USMAN, KOTTAKKALLI PARAMB, 11/2 POST KAKKOOR, KOZHIKODE. 2. DAUGHTER FITHA RASRIN (7 YEARS), D/O. ABDUL RASHEED, KOTTAKKALLI PARAMBA, 11/2 POST KAKKOOR, KOZHIKODE (KAKKOOR POLICE STATION LIMIT). THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.105 of 2008 ---------------------------------------- Dated this the 26th day of May 2008 O R D E R Petitioner was directed under Section 125 Cr.P.C to pay an amount of Rs.2,000/- per mensum as maintenance to his minor daughter aged seven years. There was bitter contest in the said proceedings and the direction to pay an amount of Rs.2000/- per mensum was confirmed by this court in R.P.F.C.No.199/05. The petitioner thereafter filed an application under Section 127 Cr.P.C before the Family Court for modification of the quantum of maintenance fixed. According to him, he did not have sufficient income to pay the said amount of Rs.2,000/- per mensum. He raised a further contention that he has suffered illness i.e inter vertebral disc collapse. He further contended that he has lost his job. About that job had contended in the earlier proceedings that he is getting only a monthly income of Rs.1,000/-. In support of that assertion of illness and loss of employment, the petitioner as PW1 has made oral assertions. He relied on Exts.A1 and A2 certificates issued by a doctor to show illness and the experience certificate issued from the Hospital R.P.F.C.No.105/08 2 and Research Centre to show that his employment has come to an end. The learned Judge of the Family Court on an anxious consideration of all the relevant inputs, came to the conclusion that the petitioner has not succeeded in satisfying the court that there has been any such illness or loss of employment to justify the invocation of the jurisdiction under Section 127 Cr.P.C. 2. The learned counsel for the petitioner submits that the petitioner is aggrieved by the order. What is the grievance? The learned counsel for the petitioner submits that in the total absence of any satisfactory denial evidence on the part of RW1, the claimant, the learned Magistrate should have accepted the oral assertions made on oath by the petitioner herein as PW1. The learned Magistrate must have noted that the assertions of the petitioner are supported by Annexures 1 and 2. In these circumstances, it is prayed that this petition may be allowed, the impugned order may be set aside and the maintenance amount may be suitably modified and reduced. 3. I have considered all the relevant inputs. The learned Judge of the Family Court appears to have taken note of all the relevant circumstances realistically. The petitioner during the R.P.F.C.No.105/08 3 subsistence of marriage with the claimant had contracted another marriage and had begotten a child in such marriage. It is at that stage the petitioner had divorced the claimant herein. The learned Judge appears to have also taken note of the circumstance that the petitioner had challenged the earlier order under Section 125 Cr.P.C before this court and has stated that he has taken steps to challenge the same before the Supreme Court. The learned counsel for the petitioner states that he has not challenged the same before the Supreme Court so far. Be that as it may, the law is very clear that the burden is on the petitioner to show change of circumstances justifying the invocation of the jurisdiction under Section 127 Cr.P.C. The Family Court had passed and this court had upheld the direction to pay maintenance at the rate of Rs.2,000/- per mensum. It is certainly for the petitioner to show and establish change of circumstances satisfactorily. 4. I am persuaded to agree that the self-serving assertions of the petitioner as PW1 which though supported by the contents of Exts.A1 and A2 are not sufficient to come to an authentic conclusion regarding the existence of any R.P.F.C.No.105/08 4 circumstances justifying alteration of the order for maintenance. There is no explanation offered as to why Exts.A1 and A2 are not properly proved in evidence. The inability of a divorced wife to speak about the employment and income of her former husband must also be realistically taken note of. Her inability to make positive assertions cannot, in these circumstances, be of any help to the petitioner herein. In any view of the matter I am not persuaded that the impugned order warrants interference by invocation of the jurisdiction under Section 125 Cr.P.C. 5. This R.P.F.C is hence dismissed. (R.BASANT, JUDGE) jsr R.P.F.C.No.105/08 5 R.P.F.C.No.105/08 6 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008