IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 RPFC.No. 292 of 2008() ---------------------- MC.884/2007 of Family Court, Malappuram .................... : REVISION PETITIONER/RESPONDENT ----------------------------------------------- P.K.ABDULLA @ ABDU @ ABDULFASAL, S/O.MUHAMMED, PARUTHIKUTHU HOUSE, AREECHOLA, AMAKKADU, PERINTHALLOOR P.O. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: PETITIONERS ------------------------ 1. MUSALIARAKATH SUMAYYA, D/O.ABDU, CHERUMKUNDIL VEEDU, KUTTIPPARA, PAYYANADU P.O., MANJERI. 2. SAVAD (MINOR), (MINOR PETITIONER IS REPRESENTED BY GUARDIAN MOTHER IST PETITIONER). THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.292 of 2008 ---------------------------------------- Dated this the 16th day of September 2008 O R D E R The petitioner has filed this R.P.F.C to assail an order passed under Section 125 Cr.P.C obliging him to pay maintenance at the rate of Rs.1000/- per mensum to his wife and Rs.500/- per mensum to his child. Marriage, paternity and separate residence are all admitted. Two elder minor children are residing with the petitioner. The wife took up the plea that she was obliged to take up separate residence along with the youngest child as the petitioner was guilty of matrimonial cruelty of the physical and mental variety against her. She hence claimed that the petitioner may be directed to pay maintenance to her under Section 125 Cr.P.C. The petitioner took up two contentions. It was contended that the wife was not unable to maintain herself. She, it was alleged, is an expert tailor and gets an income of Rs.4,000/- per mensum. Secondly and alternatively it was contended that the wife does not have any sufficient cause to take up separate residence. She, who refuse to live with him, is not entitled for maintenance, it was contended. Parties went to trial on these contention. The claimant/wife examined herself R.P.F.C.No.292/08 2 as PW1 and the petitioner examined himself as RW1. Ext.D1 series were also marked. 2. The learned Judge of the Family Court, on an anxious appreciation of the evidence of PW1 and RW1 came to the conclusion that the claimant/wife was unable to maintain herself and that the petitioner having sufficient means has refused and neglected to maintain her. The court below considered the oral evidence of PW1 and RW1 for its intrinsic worth. A prosecution under Section 498A I.P.C was pending before the criminal court. The wife advanced the reason of matrimonial cruelty to justify separate residence. It should not be lost sight of that she, a mother of three children, was obliged to reside separately along with the youngest child leaving the elder two minor children with the petitioner herein. The court below, on an anxious evaluation of all the relevant circumstances including the broad probabilities, came to the conclusion that the oral evidence of the wife as PW1 deserves to be preferred to that of RW1. The learned Judge took note of the means of the petitioner. The wife had alleged that he was running a shop in home appliances at Sulthan Batheri and was also a dealer in eggs. In the counter statement, he did not significantly disclose his profession. At the stage of evidence, he admitted that he was having business in R.P.F.C.No.292/08 3 second hand goods. There is no contention that he has any physical infirmity. The learned Judge took note of the fact that the petitioner is a man of robust health and has no disability whatsoever. 3. The learned counsel for the petitioner, first of all, contends that the learned Judge should have accepted his contention that the wife is not unable to maintain herself. She has income from tailoring, it was contended. The court below rejected his version on the appreciation of the oral evidence of PW1 and RW1. I find no reason to interfere with the said finding of the fact. Regarding separate residence and the reasons to justify such separate residence of PW1, there was only oath against oath of the interested contestants. The court below was obliged to evaluate the evidence and prefer one of them. The court below took note of the fact that the two children were residing with the petitioner; that there was a 498A prosecution pending and that there was no valid other reason even offered by RW1 to explain such separate residence of PW1. I am not, in these circumstances persuaded to interfere with the finding of fact that the wife's separate residence is justified on the allegations of matrimonial cruelty raised by her. R.P.F.C.No.292/08 4 4. Lastly, it is contended that the quantum of maintenance fixed is excessive. Even admittedly, the petitioner is a business man though he did not choose to reveal the nature of business in the counter statement filed by him. Even reckoning the petitioner as just an able bodied person, I am satisfied that the quantum of maintenance awarded i.e Rs.1,000/- per mensum to the wife aged 25 years and Rs.500/- for the third minor child aged 2½ years is absolutely justified. It is only apposite in this context that this court must remind itself of the nature and quality of its jurisdiction as a revisional court exercising supervisory and correctional powers. Unless the findings of the court below are grossly erroneous or perverse and such vice in turn results in failure/miscarriage of justice, the discretions exercised or the findings of facts entered by a subordinate court cannot and need not be interfered with by the revisional court. I am satisfied that no such vice is shown to vitiate the impugned order and in these circumstances this R.P.F.C only deserves to be dismissed. I do so. (R.BASANT, JUDGE) jsr R.P.F.C.No.292/08 5 R.P.F.C.No.292/08 6 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008