High Court Kerala High Court

Unnikrishnan.C vs Radhamani.K on 18 March, 2010

Kerala High Court
Unnikrishnan.C vs Radhamani.K on 18 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC.No. 328 of 2009()


1. UNNIKRISHNAN.C, S/O.NARAYANAN NAIR,
                      ...  Petitioner

                        Vs



1. RADHAMANI.K, W/O.UNNIKRISHNAN.C.,
                       ...       Respondent

                For Petitioner  :SRI.JAWAHAR JOSE

                For Respondent  :SRI.SURESH KUMAR KODOTH

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :18/03/2010

 O R D E R
                            M.N. KRISHNAN, J
                       -----------------------------------
                       R.P.F.C. NO. 328 OF 2009
                    ------------------------------------------
              Dated this the 18th day of March, 2010.

                             J U D G M E N T

This revision is preferred against the order of the Family Court,

Kasargode in M.C.No.235/08. The wife was ordered to be paid

maintenance at the rate of Rs.1,000/- from the date of order. It is

against that decision the husband has come in revision. It is a case

where the couples were earlier married and it was their second

marriage. The wife is having a daughter in the first marriage and the

husband having a son in the first marriage. They got married on

30.12.07 and the matrimonial relationship subsisted for few months.

Thereafter, they are separated on account of incompatibility and that

had lead to the filing of a case for maintenance. The learned young

counsel for the revision petitioner strongly contends before me that

under the provisions of the Criminal Procedure Code, it is equally

important that the capacity of the husband to pay has also to be

considered. There may not be any doubt that in a case u/S.125 of

Criminal Procedure Code necessity of the wife and capacity of the

husband to pay has to be considered to strike a balance in awarding

the amount. Now here the contention of the husband is that he is a

R.P.F.C. NO. 328 OF 2009 2

totally disabled person incapacitated to do any work and he cannot be

saddled with much liability when he himself has to depend on

somebody for his livelihood. One of the documents produced as

Ext.B2, perused by me would reveal that this man had inter vertibral

disc prolapse which had to be operated upon and further it revealed

that it had affected the knee as well. It is also certified that he requires

a prolong treatment and that he will not be able to do her work for and

long time. Innumerable number of doctor certificates, prescriptions etc.

are produced before the court but unfortunately medical evidence is not

tendered which would have been a detrimental factor in deciding a case

of this nature. I am not going into the details of this documents for the

reasons that, I feel it is absolutely necessary to satisfy the conscience

of the court regarding the capacity of the husband to pay. If a person is

totally incapacitated and unable to do any work Sec.125 Cr.P.C. does

not mandate such a person to pay maintenance even if the wife is

unable to maintain herself. So the Family Court is directed to send the

the husband who feels that he is totally incapacitated to undergo

examination by a medical board consisting of experts and get a report

be obtained to indicate what is the disability for the person and what is

the loss of earning capacity and whether he would be able to do any

work and if so the nature of the work. It has been time and again held

R.P.F.C. NO. 328 OF 2009 3

by courts that when the loss of earning capacity is calculated, it has to

be calculated not on the basis of the work which he was doing but it

must be in the background of all the work he was capable of doing.

The Full Bench decision reported in 2003 (2) KLT 462 under the

Workmens Compensation Act in Vanajakshan v Joseph has held

while assessing the disability, loss of earning capacity etc. all these

materials will be taken together and a report be obtained after which

the parties be permited to adduce evidence in support of their

respective contentions then the matter to be disposed of in accordance

with law. Since the matter has to go back to the Family Court the

parties can be permitted to adduce documentary as well as oral

evidence in support of their respective contentions including the

medical evidence. I make it clear that the husband has to bear the

expenses for attending before the medical board. The parties are

directed to appear before the Family Court, Kasargode on 23.4.2010.

Let the matter be disposed within 4 months from the date of first

appearance for the parties.

M.N. KRISHNAN, JUDGE.

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