IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 RPFC.No. 221 of 2010() ---------------------- MC.53/2005 of FAMILY COURT, KANNUR , DATED 17.7.2007 .................... REVISION PETITIONER(S): PETITIONER: ---------------------------------------------------------- FATHIMATH NIDHA, D/O.NAZEER, AGED 8 YEARS (MINOR), REPRESENTED BY MOTHER/ GUARDIAN P.V.MAJINA, D/O.MAHAMOOD, 25 YEARS, NO OCCUPATION, RESIDING AT 'MAJIGHAR', GRAMATHI, CHOKLI P.O., THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S): COUNTER PETITIONER: ---------------------------------- THUNDIYIL NAZEER, S/O.K.K.KHADER, AGED 32 YEARS, BUSINESSMAN, RESIDING AT 'PARIMALAM', CHAMBAD P.O., THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.K.P.HAREENDRAN THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- R.P.(F.C.)No.221 of 2010 ------------------------------- Dated this the 29th day of June, 2010. O R D E R The revision petitioner who is a minor, representing by her mother, preferred this revision petition, challenging the insufficiency of the monthly maintenance amount ordered by the Family Court, Kannur. 2. The revision petitioner through her mother approached the Family Court, Kannur by filing a petition u/s.125 of Cr.P.C., claiming the maintenance @ Rs.4,000/- per month, from her father, the respondent herein. According to the revision petitioner, she was born on 12.11.1998, in the wedlock of the 1st respondent and the mother of the revision petitioner and thereafter she was under the care and protection of her mother. Her father, the respondent herein, miserably failed to care and maintain her. At the time of filing the petition, the petitioner was studying in U.K.G. at Scholar's English Medium High School, Palloor. Thus she claimed an amount of Rs.4,000/- per month, towards her maintenance and it is also the case of the claimant R.P.(F.C.)No.221 of 2010 2 that the respondent is a business man and he is getting more than Rs.20,000/- per month towards his income and thus according to the claimant, the respondent has every financial capacity and potentials to pay maintenance to the claimant @ Rs.4,000/- per month. 3. Against the above claim, the respondent-father of the claimant filed a counter affidavit, denying the averments contained in the petition. According to the respondent, he is working only as a part time hotel supplier and earning only a meagre amount of Rs.1,500/- and he has no other income or savings. He also denied the claim that, he is a business man getting more than Rs.20,000/- per month. It is also the case of the counter petitioner that he has to maintain his 2nd wife and therefore he is not liable to pay the amount towards maintenance. 4. During the enquiry, PW1, the mother of the claimant was examined and no documents produced. From the side of the respondent, no evidence either documentary or oral adduced. After considering the entire materials and the rival claim, the R.P.(F.C.)No.221 of 2010 3 Family Court found that the claimant is entitled to get maintenance @ Rs.850/- per month, w.e.f. the date of the petition and the mother of the claimant is authorised to collect the amount, for and on behalf of the revision petitioner. It is also ordered that interim maintenance, if any paid, is liable to be adjusted towards the maintenance amount ordered. 5. Heard Adv.Sri.R.Surendran, the learned counsel for the petitioner and also Adv.Sri.K.P.Hareendran, the learned counsel for the respondent. 6. The counsel for the revision petitioner submitted that, the respondent was working in gulf and he returned to Kerala with sufficient finance and he is also earning good amount per month but the Family Court while fixing the rate of maintenance allowance, discarded the above fact. It is also submitted by the learned counsel that the respondent-father of the claimant, after deserting the mother of the claimant, had contracted another marriage and resided along with the 2nd wife, which would show that the respondent has sufficient capacity to maintain the claimant also. R.P.(F.C.)No.221 of 2010 4 7. On the other hand, the learned counsel for the respondent submitted that the respondent is working as a part time supplier in a hotel at Chennai, and he is getting only Rs.1,500/- per month. Apart from the above mentioned mere income, the respondent has no other savings. It is also submitted by the learned counsel that showing the source of income, the respondent has also filed an affidavit before the court below and the Family Court after considering the materials and evidence on record, fixed the monthly maintenance allowance @ Rs.850/- per month, which according to the learned counsel is very fair, reasonable and sufficient and which need no interference by this court. 8. I have carefully considered the arguments raised by both the counsels and also perused the impugned order and the other materials which made available to me by the advocates. 9. It is beyond dispute that the claimant/revision petitioner herein is the daughter of the respondent and there is no dispute about the paternity. It is also born out from the records that, the respondent is an able bodied man and even according to him, he R.P.(F.C.)No.221 of 2010 5 is employed as a part time bearer in a hotel at Chennai and he was getting a sum of Rs.1,500/- per month. Whereas, through the evidence adduced on behalf of the claimant, it is brought on record that when the respondent returned from gulf he had brought 5 kg. of gold and PW1 has already admitted that the respondent had sent a sum of Rs.10,000/- towards the maintenance, while he was in gulf. Thus it is born out from evidence that the respondent-father of the claimant was working in gulf countries and he is a gulf returnee. During cross examination, it is brought on record that the respondent was conducting a hotel and bakery in Chennai under the style and name of `Marval'. She had also denied the claim of the respondent that the respondent was working as a supplier in a hotel. According to PW1, the claimant is studying in Mahi in 2nd Std. and towards the fees itself a sum of Rs.1,500/- is required. PW1 has also denied the suggestion that the respondent was getting only Rs.1,500/- per month. It is also relevant to note that during cross examination of PW1, there was no challenge regarding the evidence about the deposition of PW1 during her R.P.(F.C.)No.221 of 2010 6 chief examination about the bringing of 5 kg. of gold ornaments from abroad. The learned counsel for the respondent submitted that, no document is produced to show that the respondent had brought gold ornaments from gulf. Ofcourse, if there is a denial of the claim of PW1 regarding the gold ornaments, which allegedly brought by the 2nd respondent, it is incumbent upon PW1 to produce materials and substantiate the same. When there is no challenge against the evidence that the respondent has brought 5 kg. of gold, that can be taken as an admission, especially in the facts and circumstances involved in the case, more particularly when the proceeding is under S.125 of Cr.P.C., for maintenance. 10. It is also relevant to note that though the respondent has filed a counter statement resisting the claim, he was not dare enough to mount to the box and give evidence. The learned counsel for the respondent submitted that, the respondent has filed an affidavit disclosing all his personal affairs including his income etc. Unless and until the deponent is made available for cross examination, there is no sanctity in the R.P.(F.C.)No.221 of 2010 7 affidavit, except for the admission contained therein. However, it is a fact that the respondent has admitted that he had an income of Rs.1,500/- per month, being a part time hotel supplier in Chennai. The above admission appears to be made with an intention to escape from the liability. Nowadays it is quite unbelievable that an employee working as a hotel supplier, especially in a city like Chennai getting only Rs.1,500/-. It is also admitted by the respondent that he is also maintaining another wife ; if that be so, the claim of the respondent that he is earning an income of meagre amount of Rs.1,500/- per month, out of the employment as a part time hotel supplier, can not be believed even for a moment. In the absence of any contra evidence and as the petitioner is an able bodied man who is able to carry out any operations or trade, involving manual labour, will necessarily have the capacity to maintain the claimant, who is his daughter now studying in 6th std. Considering the expenditure for primary education and the connected expenses, I am of the view that the amount fixed by the court below is very meagre and insufficient, which is liable to be enhanced. Considering the facts that the R.P.(F.C.)No.221 of 2010 8 claimant is studying in an English medium school at Mahi and the respondent is having sufficient income to maintain the claimant, I am of the view that the petitioner is entitled to get the maintenance atleast @ Rs.2,000/- per month. In the result, this revision petition is disposed, modifying the maintenance ordered by the Family Court and directing the respondent to provide maintenance to the petitioner @ Rs.2,000/- per month and the respondent further directed to pay the enhanced rate w.e.f. the date of the order. The mother of the petitioner is authorised to collect the amount for and on behalf of the petitioner. With the above modification, with respect to the rate of maintenance, this revision petition is disposed of accordingly. V.K.MOHANAN, Judge. ami/