IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 32 of 2008()
1. SIVAN E.K., AGED 39 YEARS,
... Petitioner
Vs
1. MINI, AGED 33 YEARS, W/O.SIVAN,
... Respondent
For Petitioner :SRI.N.K.MOHANLAL
For Respondent :SMT.SANDHYA RAJU
The Hon'ble MR. Justice R.BASANT
Dated :08/02/2008
O R D E R
R.BASANT, J
----------------------
R.P.F.C.No.32 of 2008
----------------------------------------
Dated this the 8th day of February 2008
O R D E R
This revision petition is directed against an order issued
under Section 125 Cr.P.C to the petitioner to pay maintenance at
the rate of Rs.600/- per mensum to the claimant, admittedly his
wife.
2. Marriage is admitted. Separate residence is also
admitted. The wife contended that the husband is living in
adultery. The husband, in the course of his examination before
court as RW1, admitted that he has begotten a child in his
relationship with one Usha who was a neighbour. The allegation
of illicit intimacy against the petitioner is thus admitted by him
as RW1.
3. The petitioner offered that he is willing to maintain
the wife on condition that she lives with him. He, at the same
time, raised a contention that she is living in adultery. He raises
a further contention that the claimant/wife is not a woman
unable to maintain herself. The parties went to trial on these
contentions. The claimant examined herself as PW1. A doctor
R.P.F.C.No.32/2008 2
was examined as PW2 to prove the birth of the child for the
petitioner in the said Usha. She examined another witness as
PW3 on her side. Ext.X1 was also marked on her side.
4. The petitioner examined himself as RW1. The child
born to him and PW1 as RW2 and yet another witness as RW3
were examined in an attempt to prove adultery. The learned
Judge of the Family Court came to the conclusion that the
claimant has succeeded in establishing that she is entitled for
maintenance and accordingly proceeded to issue the impugned
order directing payment of maintenance from the date of the
petition.
5. The petitioner claims to be aggrieved by the
impugned order. What is the grievance? The learned counsel
for the petitioner has been heard in detail. The learned counsel
for the petitioner, first of all, contends that the finding that he
has an adulterous relationship with one Usha is not established
satisfactorily. Less said about this contention the better. The
petitioner as RW1 was constrained to admit in the course of
cross-examination that the said Usha given birth to a child of
which he is the father. In the light of that admission, this
contention need not detain this court any further.
R.P.F.C.No.32/2008 3
6. Secondly, it is contended that the claimant/wife is
living in adultery. What is the evidence? The learned counsel
for the petitioner contends that the petitioner had produced
certain documents which would show that his wife used to write
letters to some young men in the neighbourhood. The wife
denied those letters. Those letters have not been formally
proved and the petitioner, who produced those documents, was
unable to formally introduce them in evidence in accordance
with law. How did he receive them? From whose custody did he
get it? All questions were not satisfactorily explained. He
wanted the letters to be sent to the expert for scientific
comparison. The learned Judge of the Family Court indulgently
allowed the said request also; but on condition that the
petitioner must pay the interim maintenance which had been
directed to be paid. The petitioner challenged that order
unsuccessfully by filing a writ petition before this court.
Thereafter also he did not make the payments and therefore the
letters were not sent to the expert. No attempt was made
otherwise to formally introduce those letters into evidence. RW3
was examined to prove the said adulterous relationship. Even
the attempt was only to show that the claimant/wife has been
R.P.F.C.No.32/2008 4
talking to some young men of the neighbourhood. That cannot at
all be reckoned as even an attempt to prove adultery. The said
contention raised must also hence fail.
7. There was a contention that the claimant/wife is not
unable to maintain herself. She tendered evidence as PW1. It is
by now trite that even the fact that the wife, after estrangement
and separation, has been attempting to do some work to keep the
body and soul together, is not a reason to come to a conclusion
that she is not unable to maintain herself. There is significant
absence of evidence to show that she is not a woman unable to
maintain herself.
8. The contention is raised before me that the wife has
certain bank accounts in which the petitioner had deposited
amounts and which amounts were withdrawn by her. No
satisfactory evidence has been introduced in support of that
contention. The said contention must also hence fail.
9. Lastly and finally it is contended that the quantum of
maintenance awarded is excessive. The amount ordered is only
Rs.600/- per mensum. I need not discuss this issue any further.
The amount ordered is hardly sufficient for the lady to keep body
and soul together. In any view of the matter, the challenge on
R.P.F.C.No.32/2008 5
the ground that the amount ordered is excessive must also be
rejected.
10. It is impassionately prayed that the revision petition
may be admitted. To consider the above contentions, I believe
that it will be harsh, nay cruel, to admit this revision petition and
order notice to the petitioner to come all the way to the High
Court, to engage a counsel and to contest the proceedings. No
worthwhile contention has been raised before me which can
persuade me to admit this revision petition and extend an
unnecessary and vexatious invitation to the claimant/wife to
come to this court to argue this revision petition.
11. The learned counsel for the petitioner contends that
the court below has erred grossly in directing payment of
maintenance from the date of the petition. The order must have
been only to pay maintenance from the date of the order of
maintenance, contends the learned counsel for the petitioner.
The maintenance case was filed as early as in 2001 and the
petitioner will be forced to face a huge liability now, it is
contended. The learned counsel for the petitioner draws my
attention to the stipulation of Section 125(2) Cr.P.C which states
that the amount of maintenance shall be payable from the date of
R.P.F.C.No.32/2008 6
the order or if so ordered, from the date of the application for
maintenance. The learned counsel for the petitioner contends
that the normal rule must be to award maintenance from the
date of the order.
12. A reading of the impugned order clearly shows that
though an interim direction for payment of maintenance was
ordered, the petitioner had not complied with that order. Such a
petitioner cannot be heard to contend that the maintenance
ordered should take effect only from the date of the order. That
will be conceding a premium for persons who successfully
protract the proceedings and who, with impunity, do not make
payments of amounts ordered as an interim maintenance. This
contention cannot also succeed.
13. It follows that the revision petition cannot succeed.
The same is dismissed.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
R.P.F.C.No.32/2008 7
R.P.F.C.No.32/2008 8
R.BASANT, J
C.R.R.P.No.
ORDER
21ST DAY OF JULY 2006