IN THE HIGH COURT OF KERALA AT ERNAKULAM
RPFC.No. 204 of 2009()
1. ABDUL SALIM,S/O.ABDU RAHIMAN,
... Petitioner
Vs
1. RASIYA,AGED 30 YEARS,D/O.MUHAMMED,
... Respondent
2. ASHIKH,AGED 9 YEARS (MINOR),
For Petitioner :SRI.DILIP MOHAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/06/2009
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
R.P.(FC) No.204 of 2009
--------------------------------------
Dated this the 12th day of June, 2009.
ORDER
Heard counsel for petitioner.
2. Husband, in a proceeding for payment of maintenance allowance
to his wife and son under Section 125 of the Code of Criminal Procedure (for
short, “the Code”) has come up in revision. Court below awarded a total sum of
Rs.2,750/- as maintenance allowance the split up figure being Rs.2,000/- for
wife aged 30 years and Rs.750/- for son aged 9 years. That, petitioner married
respondent No.1 on 2.7.1999 and that respondent No.2 was born in the wedlock
are not disputed. Respondent No.1 alleged matrimonial cruelty and harassment
at the hands of petitioner and pleaded that petitioner neglected and refused to
maintain respondents. She claimed that she has no means to maintain herself
while petitioner has sufficient means as he is running a grocery shop and earning
Rs.15,000/- per month and has landed property from which he is getting
Rs.5,000/- per month. Petitioner however denied that he has any such income.
Petitioner claimed that respondent No.1 has sufficient means as she is working
in an anganwadi and earning Rs.35/- per day, she has landed property and has
given a house on rent wherefrom she is getting income.
RP(FC) No.204/2009
2
3. Respondent No.1 gave evidence as PW1 and spoke to her case.
She admitted that she was working as helper in an anganwadi for fifteen days on
leave vacancy and got Rs.35/- per day. She denied that she has any landed
property. She also denied that she owned and let any house on rent.
4. Petitioner asserted his case when examined as RW1. He could
not substantiate his case as to respondent No.1 having means. He was not
able to produce any document to show that respondent No.1 has any property
or income as he asserted. On the other hand he admitted that he has a grocery
shop. He claimed that he has taken a loan of Rs.1,50,000/- from the bank with
liability to pay the amount in instalments at the rate of Rs.6,000/- per month.
Courts below found that petitioner has sufficient means to pay maintenance to
respondents. That finding is under challenge in this revision. Learned counsel
asserted that petitioner has no means but respondent No.1 has means.
Counsel submitted that petitioner is undergoing treatment as proved in the case
and hence court below was not correct in casting liability on him to pay
maintenance to his wife and son.
5. It is true that petitioner produced some documents to show that he
had been undergoing treatment at some point of time. Ext.D1 is the treatment
record of petitioner which shows that he underwent laprotamy surgery and was
RP(FC) No.204/2009
3
discharged cured on 12.12.1999. Exts.D2 to D5 are also his treatment records
during the years, 1996, 2005, 2006 and 2008. But it is seen that it is after the
treatment as per Ext.D1 that he availed loan of Rs.1,50,000/- from the bank.
He has also availed a loan of Rs.70,000/- for the purpose of business in the
year 2007. Therefore, even from his evidence it is clear that he has been
raising funds for his business and had the capacity to repay the loans. Loans
were taken for the development of his own business. Hence the contention that
he has no means or he is incapable of raising funds for payment to respondents
cannot be accepted.
6. The fact that petitioner has challenged even the order to pay
maintenance allowance at the rate of Rs.750/- per month to his son aged nine
years indicates his attitude towards the respondents. He has no case that he
was prepared to take the respondents and maintain them. Therefore, they are
entitled to separate residence and maintenance. I am satisfied that petitioner
has sufficient means to pay maintenance.
7. Coming to the question whether maintenance awarded is
excessive, I must bear in mind that the aggregate amount awarded is only
Rs.2,750/- per month to the wife aged 30 years and son aged nine years.
RP(FC) No.204/2009
4
Considering the basic needs and requirements of the respondents and the cost
of living I am not inclined to call it as luxury. In the facts and circumstances of
the case, order under challenge does not require interference.
Revision petition fails. It is dismissed.
Crl.M.A.No.5559 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks