High Court Kerala High Court

C.P.Divakaran vs Subhadra on 22 October, 2007

Kerala High Court
C.P.Divakaran vs Subhadra on 22 October, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 1775 of 2002()


1. C.P.DIVAKARAN, KOCHUKALEEKKAL,
                      ...  Petitioner

                        Vs



1. SUBHADRA, SREENILAYAM VEEDU,
                       ...       Respondent

2. MALOOTTI, SREENILAYAM VEEDU,

                For Petitioner  :SRI.P.S.NANDANAN

                For Respondent  :SRI.R.PADMAKUMAR

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :22/10/2007

 O R D E R
                            V. RAMKUMAR, J.

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                     Crl. R.P. No. 1775 OF 2002 A
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               Dated this the 22nd day of October, 2007

                                  O R D E R

In this revision filed under Section 397 read with

Section 401 Cr.P.C. the revision petitioner, who was the counter

petitioner in M.C. No.27/1994 on the file of JFCM, Mavelikkara,

challenges the orders concurrently passed by the courts below

directing him to pay maintenance to respondents 1 and 2, who are

the wife and child of the revision petitioner. While the quantum of

maintenance fixed by the Magistrate was Rs.150/- per month to

the wife and Rs.100/- per month to the child, in a revision at the

instance of the respondents the Additional Sessions Judge-II,

Mavelikkara in Crl.R.P. No.85/1995 enhanced the quantum of

maintenance to the wife and child at the rate of Rs.500/- and

Rs.200/- per month respectively. It is the said order which is

assailed in this revision.

2. The marriage between the revision petitioner and the

1st respondent was on 10.2.1991. The second respondent was

born on 5.10.1991. According to the wife, after the birth of the

child, the husband started behaving cruelly towards her after

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: 2 :

consuming alcohol and demanding more dowry. He used to

question his paternity over the child. She alleged that her

husband was employed in the government ferry service. He had

refused to cohabit with the wife on the allegation that the child was

not his. He filed H.M.A.O.P. No.89/1991 before the Sub Court,

Mavelikkara, for declaring the marriage with the 1st respondent null

and void on the ground that she was pregnant on the date of

marriage. The wife and daughter claimed maintenance at the rate

of Rs.500/- and Rs.200/- per month.

3. The application for maintenance was resisted by the

revision petitioner contending inter alia as follows:-

The 2nd applicant is not the child born to him in the 1st

applicant. At the time of the marriage itself the 1st applicant was

pregnant and the marriage was conducted suppressing the

pregnancy. The 2nd applicant was born as a fully matured child

after 236 days of marriage. He has not demanded dowry nor has

he ill treated the 1st applicant as alleged. He is not in the habit of

taking alcohol as alleged. Since the 1st applicant was pregnant on

the date of marriage and the said fact was concealed from him, he

filed H.M.A.O.P. No.89/1991 for declaring the marriage to be null

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: 3 :

and void. That petition was, however, dismissed. The application

for maintenance is without any bona fides and may be dismissed.

4. Both the courts below have concurrently held that the

2nd applicant(2nd respondent herein) was a premature baby born to

the revision petitioner and the 1st respondent herein and that the

allegation of pre-marital affair made by the husband was not true,

that absolutely no evidence was adduced by the revision

petitioner/husband to show that the wife was living in adultery and

that since he was indulging in physical assault of his wife after

coming home drunk, the act of the wife leaving the matrimonial

home and claiming separate maintenance was justified.

5. The fact that the revision petitioner was employed in

the government ferry service at Ernakulam is not disputed. The

only objection raised by the revision petitioner is that the court

below was not justified in enhancing the maintenance as there

was no evidence to show the income of the revision petitioner. It

is true that the wife and child had only alleged that the revision

petitioner is employed in the government ferry service and that

besides his salary income he was also having a monthly income of

Rs.250/- from other properties. But then, the revision petitioner

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did not adduce any acceptable evidence to show his income which

is a matter within his exclusive knowledge and by virtue of Section

106 of the Evidence Act the burden was on him to show his

income. The applicants had discharged their initial burden and in

the absence of any material produced by the revision petitioner the

Sessions Court was justified in enhancing the monthly allowance

to Rs.500/- and Rs.200/- respectively. Even that amount is a

paltry amount with which one cannot make both ends meet.

6. The argument of the learned counsel for the revision

petitioner that the direction to pay the maintenance from the date

of petition, namely, 7.9.94 is illegal, also cannot be continenced.

All that sub section (2) of section 125 says is that if the court so

orders an application for maintenance may be made operative

from the date of application for maintenance. No reasons are

expected to be stated by the court for directing that the order for

maintenance shall relate back to the date of application. The

above provision is to prevent vagrancy and destitution and a

person in utter poverty knocks at the door of the criminal court for

a pittance and if the trial of the case takes months or years to ripe

into a final order and if the courts were to give the applicant

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maintenance only from the date of the order, that would be a

negation of justice. In the normal course, the order for

maintenance should relate back to the date of the application for

maintenance and it is only in exceptional cases that it can be

made operational from the date of the final order. It is for no fault

of the applicant that the court is denying him maintenance for the

period from the date of application till the date of final disposal.

Hence, no reasons need be stated if the order for maintenance is

made operational from the date of the petition.

7. After considering the facts and circumstances of the

case, I see no reason to interfere with the revisional order passed

by the Additional Sessions Court.

This revision is accordingly dismissed.

The revision petitioner is given three months’ time to deposit

the entire arrears. He shall, however, continue to deposit the

future maintenance without fail.

(V. RAMKUMAR, JUDGE)
aks

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V. RAMKUMAR, J.

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Crl. R.P. No. 1775 OF 2002 A
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O R D E R

22nd day of October, 2007