High Court Kerala High Court

Sainul Abid vs Khoulath on 3 March, 2008

Kerala High Court
Sainul Abid vs Khoulath on 3 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP(Family Court) No. 353 of 2007()


1. SAINUL ABID, S/O.ABDULLA,
                      ...  Petitioner

                        Vs



1. KHOULATH, AGED 25 YEARS,
                       ...       Respondent

2. FABINA RAMSI, AGED 3 YEARS (MINOR)

3. ABOOBACKER, AGED 1 1/2 YEARS(MINOR).

4. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.B.S.SWATHY KUMAR

                For Respondent  :SRI.C.V.MANUVILSAN

The Hon'ble MR. Justice R.BASANT

 Dated :03/03/2008

 O R D E R
                              R. BASANT, J.

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                      R.P.F.C.No.  353 of   2007

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                Dated this the 3rd day of  March, 2008


                                  O R D E R

ApplicationThis revision petition is directed against an

order passed under Section 125 Cr.P.C. obliging the petitioner to

pay monthly maintenance at the rate of Rs.1300/-, Rs.700/- and

Rs. 500/- respectively to his wife, aged about 25 years, and his

children aged 3 years and 1 = years. The wife is now pregnant

also for the third time.

2. Marriage is admitted. Paternity of the claimant children

is admitted. Separate residence is also admitted. The husband

offered to maintain the claimant wife on condition that she lives

with him. Interestingly, he also set up a defence that the child in

her womb is not fathered by him. He took up a further

contention that the wife has sufficient means. She is employed as

a tailor, it was contended. The petitioner is admittedly an

autorikshaw driver. In these circumstances the learned Judge of

the Family Court correctly addressed himself to the three

questions raised.

R.P.F.C.No. 353 of 2007

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3. First one is whether the claimant wife is a woman unable to

maintain herself. Eventhough claims were made that the claimant is a

tailor, no evidence was produced. The Judge of the Family Court

rightly came to the conclusion that the wife is shown to be a woman

unable to maintain herself. The second question that came up for

consideration was whether the husband is liable to pay separate

maintenance to the wife. The husband had sent a notice to the wife

calling upon her to cohabit with him. She had received the notice, but

not replied to it. The learned Judge of the Family Court decided the

issue in favour of the claimants basically on the test of possibilities and

because of one undisputed conduct on the part of the petitioner. The

wife was two months pregnant. The petitioner had cruelly raised a

contention that the child in the womb is not his. That contention was a

contention which was not seriously raised as can be seen from the fact

that no semblance of evidence was produced to prove, probabilise or

even indicate the truth of that contention. The learned Judge of the

Family Court took note of the probability that a hapless wife, who is

not shown to have any one to look after her, was unlikely to reside

R.P.F.C.No. 353 of 2007

3

separately from her husband unless valid reasons are there. The wife

had reasons to urge, whereas the petitioner is ignorant about the

reasons to explain separate residence. The crucial conduct of the

petitioner denying the paternity of the child in womb was reckoned

rightly, according to me, as an indication of matrimonial cruelty

inflicted on the claimant wife. The second contention raised was also

rightly considered and answered by the learned Judge, I conclude.

4. Lastly and thirdly a contention is raised that the quantum of

maintenance awarded is excessive. The petitioner is admittedly an

autorikshaw driver. There are various other disputes raised as to

whether the autorikshaw belongs to him or not. There is also a dispute

as to whether he has other alternative source of income. The learned

Judge, because of paucity of evidence, confined himself to the admitted

source of income of the petitioner – from his employment as a driver.

The learned Judge took the view that at any rate a driver like the

petitioner can safely have assumed to get a monthly income of

Rs.5,000/- The learned Judge further took the view that out of that,

even keeping apart half of the amount for the petitioner and his

fractional liability to maintain his parents, if any, the claimants are

R.P.F.C.No. 353 of 2007

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entitled for Rs.2500/- p.m. in all. The said approach made and the

process of legal reasoning on probabilities adopted by the learned

Judge of the Family Court is found to me to be justified.

5. It will not be inapposite in this context for this Court to

remind itself the nature, quality and contours of the revisional

jurisdiction of superintendence and correction. It is by now trite that

any and every error, even assuming that such error has been committed

by the subordinate court, shall not persuade the court of revision to

invoke its revisional jurisdiction of superintendence and correction.

The finding must be grossly erroneous. The discretion exercised must

be grossly improper. Such vice must also lead to miscarriage of

justice. Then and then alone can a court choose to invoke the revisional

jurisdiction of superintendence and correction.

6. This revision petition deserves to be and I do hereby dismiss

the same.

(R. BASANT)

Judge

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