IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 RPFC.No. 11 of 2009() --------------------- AGAINST THE ORDER DATED 15/11/2008 IN IA 2995/08 IN MC.200/2008 of Family Court, Nedumangadu .................... REVISION PETITIONER/COUNTER PETITIONER -------------------------------------- N. SURENDRAN, AGED 45 YEARS, S/O. MATHAN KANI, THADATHARIKATHU VEEDU, ALUMMOODU, PERINGAMALA, PALODE. BY ADV. SRI.D.KISHORE RESPONDENT(S): PETITIONERS -------------------------- 1. VIMALA, AGED 42 YEARS, D/O. SUMATHY, THAKKUMKARA PUTHEN VEEDU, VADILIPPULLU, PATTANKULICHAPARA, PAPPARA, VITHURA. 2. AKHIL, S/O. SURENDRAN, AGED 17 YEARS, THAKKUMKARA PUTHEN VEEDU, VADILIPPULLU, PATTANKULICHAPARA, PAPPARA, VITHURA. REP. BY HIS MOTHER VIMALA, IST RESPONDENT HEREIN. 3. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.11 of 2009 ---------------------------------------- Dated this the 13th day of January 2009 O R D E R The petitioner has suffered an interim direction to pay maintenance at the rate of Rs.1,000/- per mensum to the claimants, his wife and child under Section 125 Cr.P.C. Marriage and paternity are not disputed. Separate residence is also conceded. The husband had entered appearance and had filed his counter statement. It is relevant to note that the husband had filed an application for restitution of conjugal rights and the said application is pending also. Significantly, in the counter statement filed by the petitioner under Section 125 Cr.P.C, there is no specific plea raised or offer made that the petitioner is willing to maintain his wife on condition that she lives with him. The wife filed an application for a direction for payment of interim maintenance. The learned Judge proceeded to pass the impugned order directing payment of maintenance at the rate of Rs.1,000/- per mensum to the wife and child. So far as the direction in favour of the child is concerned, there is no dispute. But it is contended that the direction in favour of the wife is not justified. The learned counsel for the petitioner, first R.P.F.C.No.11/09 2 of all contends that, to the application for interim maintenance, no opportunity was given to file objections. I do not reckon this as important as counter statement had already been filed to the main application under Section 125 Cr.P.C and therefore the contentions of the parties were readily available before the court below. 2. The mere fact that an application for restitution of conjugal rights has been filed or a decree for restitution of conjugal rights has already been passed is, it is trite, no sufficient reason to turn down a claim for maintenance under Section 125 Cr.P.C. The decisions in Zeenath v. Sulfiker Ali [2008(3) KLT 757] and Mary v. Varghese [2008(4) KLT 522] clearly show that there must be a contemporaneous offer in response to the claim for maintenance to maintain the wife on condition that she lives with the husband. The counter statement reveals that such a specific offer is not made by the petitioner. This is not to say that the petitioner cannot later amplify his counter statement and make it clear that he is willing to maintain the wife on condition that she lives with him. He can also make a genuine offer in the course of the trial. But, at the moment, I am unable to sail to a conclusion that the impugned R.P.F.C.No.11/09 3 order warrants revisional interference on that ground. No specific offer having been made in the counter statement to maintain the wife on condition that she lives with him, consistent with the rulings referred above, it has to be held that there is no refusal of the wife to attract the 2nd proviso under Section 125(3) Cr.P.C or 125(4) Cr.P.C. 3. The quantum directed to be paid, does appear to me to be absolutely reasonable and I am, in these circumstances, satisfied that the same does not warrant interference. I am satisfied that the interests of justice will be eminently served by directing the learned Judge of the Family Court to dispose of the main claim under Section 125 Cr.P.C itself as expeditiously as possible. It is further observed that I have not intended to make any observation which shall weigh with the court while considering the claim for maintenance under Section 125 Cr.P.C later. 4. This R.P.F.C is in these circumstances dismissed with the above observations. (R.BASANT, JUDGE) jsr R.P.F.C.No.11/09 4 R.P.F.C.No.11/09 5 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008