IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP(Family Court) No. 24 of 2008()
1. CHERAYI DASAN ,S/O.RAMANKUTTY
... Petitioner
Vs
1. VALIYAPARAMBIL BEENA,D/O. SANKARAN
... Respondent
2. SAI KIRAN, MINOR REPRESENTED BY HIS
For Petitioner :SRI.SIBY MATHEW
For Respondent :SRI.K.A.SALIL NARAYANAN
The Hon'ble MR. Justice R.BASANT
Dated :31/03/2008
O R D E R
R. BASANT, J.
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R.P.F.C. No. 24 of 2008
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Dated this the 31st day of March, 2008
O R D E R
This revision petition is directed against an order passed
under Section 127 Cr.P.C. enhancing the maintenance granted to
the claimants – wife and child of the petitioner herein – from
Rs.500/- and Rs.450/- fixed respectively in 1997 to Rs.1000/-
and Rs.750/- respectively fixed in the year 2007.
2. Marriage is admitted. Paternity is also admitted. The
earlier order, though an ex parte order, is also conceded. The
wife contended that subsequent to the earlier order, an Original
Petition, which was pending, was agreed to be settled by reunion.
But she contended that the husband had not returned the articles
or the amount nor had he resumed cohabitation. The passage of
time of one decade along with the growth of the child and the
increase in the earnings of the petitioner were pressed into
service to justify the claim for enhancement of maintenance.
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3. The husband contended that subsequent to the order passed
under Section 127 Cr.P.C. in 1997 there was an agreement to resume
the cohabitation and cohabitation was actually resumed. The spouses
allegedly lived together from 2000 to 2007. The order of maintenance
was never attempted to be executed in the meantime. In 2007 the wife
left the petitioner without any satisfactory reasons. Thereafter attempt
was made to execute the order for the entire period. Subsequently the
present claim petition was also filed seeking enhancement of
maintenance. In these circumstances the husband contended that he is
not entitled to pay any enhanced maintenance, she having resorted to
separate residence in 2007 without any reasons.
4. The counsel for the rival contestants have been heard.
Records of the court below have been perused.
5. The learned counsel for the petitioner contends that the
learned Judge of the Family Court erred grossly in not considering
whether there has been a resumption of cohabitation and whether the
wife had left the company of the petitioner in 2007 without any valid
reasons. The learned counsel for the petitioner contends that
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cohabitation having been resumed in the interregnum period and the
wife having not claimed execution of the earlier order for maintenance
all along, the learned Judge was obliged to consider this question
under Section 127 Cr.P.C.
6. The learned counsel for the respondents/claimants contends
that all these questions do not arise for consideration at all. The wife
even in the petition under Section 127 Cr.P.C. had made unambiguous
averments that though there was an attempt to settle the Original
Petition filed in 2000 by resuming cohabitation, cohabitation was not
resumed and the parties were residing separately all along. In these
circumstances the contention that there was resumption of cohabitation
and subsequent separate residence without any valid reasons did not
arise for consideration at all. The counsel submits that the oral
evidence of PW1 and RW1 must remove the last trace of doubt on this
aspect.
7. I have been taken through the evidence of PW1, the claimant
and RW1, the petitioner herein. I find the contention of the learned
counsel for the respondent to be absolutely justified. There is no
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worthwhile attempt either by cross examination of PW1 or by chief
examination of RW1 to advance a contention that there was resumption
of cohabitation subsequent to the order in the Original Petition. In the
light of the categoric assertions made in the petition under Section 127
Cr.P.C. by the claimants and in the light of the total absence of
evidence on this aspect and more importantly in the absence of even an
attempt to raise this contention before the learned Judge of the Family
Court, the learned Judge was eminently justified in not adverting to
this unnecessary controversy, though raised in the counter statement
which was not sought to be supported by any evidence at all. I do not,
in these circumstances, find any merit in the contention that the
learned Judge had omitted to consider any relevant aspect.
8. Be that as it may, the counsel for the petitioner contended that
the enhancement allowed is excessive. The petitioner is directed to pay
an amount of Rs.1000/- p.m. to his wife and Rs.750/- p.m. to the child.
After a period of about one decade maintenance for the wife and child
has been enhanced from Rs.500/- to Rs.1000/- and from Rs. 450/- to
Rs.750/- In any view of the matter, I am satisfied that the quantum of
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enhancement granted is absolutely justified and the same does not
warrant any interference. No other contentions are raised.
9. I am satisfied that this revision petition only deserves to be
dismissed. I do so.
(R. BASANT)
Judge
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