IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 RPFC.No. 110 of 2007() -------------------------------- MC.60/2005 of FAMILY COURT, KANNUR .................... REVISION PETITIONER/PETITIONER -------------------------------------------------- KUNHIRAMAN, S/O.KUNHAPPAN., AGED 70 YEARS, VELLACHAL PARAMBIL HOUSE, RESIDING AT KIZHAKKEKARA, ERAMAM AMSOM DESOM, KANNUR DISTRICT. BY ADV. MR.M.V.AMARESAN RESPONDENTS/COUNTER PETITIONERS ----------------------------------------------------------- 1. VINOD, S/O.KUNHIRAMAN, AGED 32 YEARS, VELLACHAL PARAMBIL HOUSE., RESIDING AT KIZHAKKEKARA., ERAMAM AMSOM DESOM, KANNUR DISTRICT. 2. PRAMOD, S/O.KUNHIRAMAN, AGED 30 YEARS, VELLACHAL PARAMBIL HOUSE, RESIDING AT KIZHAKKEKARA., ERAMAM AMSOM DESOM, KANNUR DISTRICT. 3. VINAYAN, S/O.KUNHIRAMAN, AGED 24 YEARS, VELLACHAL PARAMBIL HOUSE., RESIDING AT KIZHAKKEKARA., ERAMAM AMSOM DESOM., KANNUR DISTRICT. 4. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR., HIGH COURT OF KERALA., ERNAKULAM. PUBLIC PROSECUTOR ADV. MR.M.SASINDRAN FOR R1 TO R3 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 11/02/2009, ALONG WITH RPFC NO. 189 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N. KRISHNAN, J ----------------------- R.P.(F.C)No. 110 OF 2007 & R.P.(F.C)No. 189 OF 2007 --------------------------------- Dated this the 11th day of February, 2009 O R D E R R.P.(F.C) 110/2007 is filed against the order of the Family Court , Kannur in M.C. 60/2005 and the other is filed against the order of the same court in M.C. 147/2005. M.C. 60/2005 is filed by the father against the sons for maintenance and the other case is filed by the wife against the husband for maintenance. The revision petitioner before this court is the father of respondents 1 to 3 in R.P(F.C) 110/2007 and the husband of the 1st respondent in R.P(F.C) 189/2007. The father is on one side and the mother and children are on the other side. The father moved an application for maintenance contending that he has been forced to be away from the house and has not even been supplied with food and there was an attempt to poison and kill him and as he is not having any resources, the sons should be ordered to pay maintenance. The wife in her maintenance case would contend R.P.(F.C)No. 110/2007 & R.P.(F.C)No. 189/2007 -2- that she is incapable of looking after herself and the husband has deserted her and so she must be paid maintenance by the husband. The court below found in favour of the husband and wife by two separate order and directed the sons to pay maintenance at the rate of Rs. 75/- each to the father and directed the husband to pay maintenance at the rate of Rs. 500/- to the wife. There is certainly incongruity and inconsistency with the said finding. When the court holds that the father is entitled to maintenance from his children it arrives at a decision regarding the incapacity of the father to live by his income. Similarly when the husband is asked to pay maintenance to his wife it means that he is having the physical ability as well as the means to pay and is neglecting to maintain. Therefore the wife is entitled to get maintenance. So the prime question would be who is having the resource and whether that person is bound to pay the maintenance. I am informed that admittedly there is 1.75 acres of land which belongs to the father. I am also informed that there is a litigation pending in civil court with respect to the possession of the property. If there is an order of interim R.P.(F.C)No. 110/2007 & R.P.(F.C)No. 189/2007 -3- injunction protecting the right of the father against trespass from the sons, one cannot believe that the sons are appropriating the income from the property and such a vibrant father would not keep quiet if there is violation of order of the court. Then what are the materials that is available and what will be the approximate income is a matter that has to be probed into and a finding to be entered into. After arriving at that and deciding the question who is taking the profits one will be able to find out who is depended on whom. It is contended by the sons that the father is a very able bodied blacksmith having daily income of Rs.300/-, where as Family Court entered into a finding that he is in the process of getting old but does not state anything about his capacity to do the work as blacksmith. It is true that the whole thing is the result of a quarrel between the father and the children and mother. If a father is certainly helpless without any property the obligation is there on the son to maintain him and if the wife is also in a very same fate of the husband who is having some resources then the husband is bound to maintain the wife. But this can be decided only on a real factual arrival on the basis R.P.(F.C)No. 110/2007 & R.P.(F.C)No. 189/2007 -4- and means of the persons. Unfortunately the Family Court has considered these two matters independently. Therefore the only proper method is to set aside both orders passed by the court below and direct the Family Court to consider the matter afresh and it may permit the parties to adduce common evidence in both the cases so that the question of the means and who enjoys can be found out and thereafter appropriate orders be passed in both the cases. Parties are directed to appear before the Family Court on 23.3.2009. M.N. KRISHNAN,JUDGE vkm