IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 326 of 2008()
1. V.BINDU, D/O.OMANA, BINDU BHAVAN
... Petitioner
Vs
1. S. KRISHNANKUTTY, S/O.SREEDHARA PANIKER
... Respondent
For Petitioner :SRI.DILIP MOHAN
For Respondent :SRI.R.T.PRADEEP
The Hon'ble MR. Justice R.BASANT
Dated :06/11/2008
O R D E R
R.BASANT, J
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R.P.F.C. No.326 of 2008
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Dated this the 6th day of November, 2008
ORDER
Petitioner, whose claim for maintenance under Section 125
Cr.P.C against her husband was rejected by the Family Court,
has come before this Court with this revision petition.
2. Marriage is admitted. Separate residence is
conceded. There is no offer to maintain the wife on condition
that she lives with him. In these circumstances the only
questions that survive for consideration are
i) Whether the husband is a person having sufficient
means and
ii) Whether the wife is unable to maintain herself.
That no amount of maintenance has been paid to the wife is
conceded.
3. There was a contention that the wife is not unable to
maintain herself. The wife on oath asserted that she is unable to
maintain herself. It is trite following the dictum in Rajathi v.
C.Ganesan (A.I.R 99 (S.C) 2374] that an assertion on oath by
the wife that she is unable to maintain herself would shift the
R.P.F.C. No.326 of 2008 2
burden to the respondent/husband to show that she is not
entitled to maintain herself. The husband contends that she is
employed as a post woman. Employment as a post woman
cannot be kept a secret by any one. There will be proper
documents to show if a person is employed as a post woman.
The claimant/wife asserted on oath that she was temporarily
employed as a post woman. She does not have that employment
now. No attempt appears to have been taken by the
respondent/husband to show that the petitioner is as a matter of
fact employed now as a post woman. The cross examination of
PW1 shows the apologetic nature of the contention about the
employment of the petitioner as a post woman.
4. The next contention that the wife runs a tailoring shop
and gets an income of Rs.8,000/- from such an income earning
activity. The wife deposed that she has no shop and that she
does not know tailoring. Not a semblance of contra evidence is
adduced to show that the wife knows tailoring; runs a tailoring
shop and derives any income therefrom.
5. The wife admitted in the course of evidence that she
has a plot of 50 cents and she resides in the building in that plot.
I have gone through the cross examination in detail. There is not
R.P.F.C. No.326 of 2008 3
even a semblance of specific suggestion that any portion of that
building is rented out and she derives any income from such
building. There is not even an assertion or suggestion that there
is any income deriving by her from that 50 cents plot and
building.
6. Except this, no other circumstances are there to show
that the claimant/wife has any source of income as to take her
out of the sweep of the expression “woman unable to maintain
herself”.
7. A very surprising and interesting argument is pressed
into service. I note that the learned Judge of the Family Court
has accepted the same also. The wife in an attempt to
substantiate her claim for a larger amount as maintenance
contended that she and children put together need an amount of
Rs.8,000/- for maintenance. From this evidence it is deduced
that she now spends Rs.8,000/- and therefore she must have
income to spend such amount of Rs.8,000/-. That argument and
contention borders on perversity. The wife asserted that she has
no employment. She asserted that she is living on the charity of
her relatives. Merely because, she asserted and made a tall
clam that, she needs an income of Rs.8,000/-, it is unreasonable ,
R.P.F.C. No.326 of 2008 4
irrational and puerile to jump to the conclusion that she has
income earning activity and gets at least such amounts from
such activity.
8. I am, in these circumstances, satisfied that the
conclusion of the court below on the question as to whether the
wife is unable to maintain herself is grossly erroneous and the
same warrants revisional interference.
9. It is contended that the husband is not having
sufficient means. Admittedly he was employed in the C.R.P.F.
He claimed that he had taken voluntary retirement because of
his illness. There is nothing to show that voluntary retirement
was taken on health grounds.
10. Admittedly he has received terminal benefits. The
wife claims that a huge amount of about Rs.4.5. lakhs has been
received by him. The husband admits that he has received such
amount. But he does not volunteer or reveal to the court the
amounts. Going by his evidence he had received “some
amounts” which he significantly does not reveal to the court.
The stand taken by the respondent in the light of the evidence
tendered by the claimant/wife must lead the Court to the natural,
reasonable and probable conclusion that the husband must have
R.P.F.C. No.326 of 2008 5
received sufficiently huge amount by way of terminal benefits
on his voluntary retirement.
11. He admittedly gets a pension exceeding Rs.2,000/- per
mensem. Though there is an assertion that he is having income
from employment as a security guard, that is denied. No better
evidence is produced. He is a 45 year old former constable of
the C.R.P.F who has taken voluntary retirement. The assertion
of the wife that he has taken up post retirement employment
does not at all appear to me to be improbable. The husband
relies on certain medical records to show that he suffers from
ailments. But that is totally insufficient to assume that the
husband has not pursued any productive employment and
utilisation of time which he has in abundance as a retired police
constable. Reasonable inferences are permissible for a prudent
mind and a Court, under Section 3 of the Evidence Act, must
certainly adopt the standards of a prudent person. I find no
merit in the contention that the respondent/husband has no
income earning activity whatsoever post retirement.
12. A strange contention is raised that the wife is able
bodied and therefore she must be assumed and presumed to be
able to maintain herself. Less said about this contention, the
R.P.F.C. No.326 of 2008 6
better. It is true that while considering the question of liability
of the husband/father to maintain his spouse/children Courts
have taken the view that being able bodied is itself to be
reckoned as a reasonable indication that the man has sufficient
means. He is expected to o at least manual work, earn his
livelihood and support his wife and children. But that logic
cannot obviously be applied in the case of a woman. The
provisions of Section 125 Cr.P.C are initiated to help and
ameliorate the grievances of the lesser fortunate half of the
Indian polity. I am unable to agree that the alleged
circumstance that the wife has an able body is by itself sufficient
to conclude that she is not unable to maintain herself.
13. I am satisfied that the finding that the wife is not
entitled for any maintenance under Section 125 Cr.P.C is totally
erroneous and does not warrant revisional interference.
14. I should remind myself of the nature, quality and
contours of the revisional jurisdiction of superintendence and
correction. It is trite that a court of revision should not choose
to lightly invoke such revisional jurisdiction of superintendence
and correction. Unless the findings are so grossly incorrect,
unreasonable, irrational and unjust, the revisional jurisdiction
R.P.F.C. No.326 of 2008 7
shall not be invoked. I am satisfied that the finding that the wife
is not unable to maintain herself suffers from the vice of
irrationality and unreasonableness. It would be abdication of
jurisdiction not to invoke the revisional powers of
superintendence and correction in the facts of this case.
15. I take the view that the wife is entitled for
maintenance from the respondent/husband. I am in these
circumstances satisfied that the maintenance deserves to be
granted @ Rs.1,000/- per mensem to her. I direct such payment
under Section 125 Cr.P.C from the date of the petition, ie. from
26.12.2002. The admitted receipt of lumsum terminal benefit
persuades me to hold that the discretion to direct payment of
maintenance must be exercised in favour of the claimant and
hence I direct payment of maintenance from the date of the
petition.
16. This Revision Petition is, in these circumstances,
allowed to the above extent.
(R.BASANT, JUDGE)
rtr/-