High Court Kerala High Court

Sudheer vs Valsala on 29 July, 2009

Kerala High Court
Sudheer vs Valsala on 29 July, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RPFC.No. 273 of 2009()


1. SUDHEER, AGED 35 YEARS,
                      ...  Petitioner

                        Vs



1. VALSALA, AGED 29 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.K.P.BALAGOPAL

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :29/07/2009

 O R D E R
                             THOMAS P. JOSEPH, J.
                           --------------------------------------
                             R.P.(FC) No.273 of 2009
                           --------------------------------------
                       Dated this the 29th day of July, 2009.

                                        ORDER

This revision is in challenge of the order passed by the Family Court,

Palakkad in M.C.No.536 0f 2006 directing petitioner to pay maintenance to the

respondent aged 29 years (at the time of filing the application for maintenance)

at the rate of Rs.1,500/- per month. Petitioner married respondent on

30.8.2003. She alleged ill-treatment, cruelty, neglect and refusal to maintain on

the part of petitioner. She has a case that she was even locked up in the room

and her relative had to come for her rescue. According to the respondent,

petitioner has illicit connection with his aunt. She stated that petitioner is a

famous astrologer earning Rs.500/- per day and has landed properties.

Petitioner denied the allegations against him and claimed that respondent is a

cruel wife who spoiled his life. He claimed that on account of the ill-reputation

brought to him, he has lost his clients in astrology and is now working as a

watchman earning Rs.2,100/- per month. Both sides adduced evidence in

support of their contention. It came out in evidence that alleging cruelty

petitioner had filed a petition for divorce but after taking evidence that petition

was dismissed. That order became final. On the other side complaint preferred

by the respondent for offence punishable under Section 498A of the Indian

Penal Code resulted in acquittal of petitioner. Regarding that acquittal learned

Judge has pointed out that appreciation of evidence in a criminal proceeding is

RP(FC) No.273/2009

2

entirely different from that in a civil proceeding. Learned Judge observed that

since petition seeking divorce on the ground of cruelty on the part of respondent

ended in dismissal petitioner cannot any more contend that respondent was

cruel. Learned Judge has considered the evidence and has come to the finding

that petitioner was cruel to the respondent and that made her eligible for

separate residence and maintenance. I do not find reason to differ from that

finding.

2. Petitioner has raised a contention that he is working as watchman

and earning only Rs.2,100/- per month. He stated so as RW1 and produced

Ext.D4, certificate said to be issued by the manager of the concern where he is

allegedly working. RW2 is one of the signatories in Ext.D4 and supported the

petitioner. But it came out that except Ext.D4 there is no scrap of paper to

show that petitioner is working as watchman. Ofcouse RW2 has an

explanation for that – it is because petitioner is not a permanent employee.

According to RW2, the duty time of petitioner is from 8 a.m. to 8 p.m. but

petitioner says that he does not know whether there is a night watchman for the

concern. Learned Judge observed that if petitioner was actually a watchman of

the concern, he would not have been unaware of that fact. In these

circumstances, learned Judge was not inclined to accept the evidence of

petitioner (RW1) and RW2 and Ext.D4. Conclusion of the court below require

no interference.

3. Even according to the petitioner he is an astrologer his case being

RP(FC) No.273/2009

3

that he lost clients on account of ill-reputation brought by respondent. In other

words, his efficiency as an astrologer is not under challenge . He is otherwise

capable of earning . Therefore the sum of Rs.1,500/- per month awarded to

respondent as maintenance cannot be taken as something beyond his reach.

4. Petitioner has a case that respondent is earning as an astrologer

and examined RW3 in proof of that. But apart from vehemently suggesting that

respondent is earning as astrologer, RW3 was not able to give the details. That

defence was also not acted upon by the court below for cogent reasons. Yet

another contention of the petitioner is that respondent owned landed properties

and produced Ext.D2, information petitioner had collected from the Village

Officer concerned under the provisions of the Right to information Act. Ext.D2

shows that respondent’s father has 1.10 acres of land. That is not a property

owned by the petitioner. At any rate she has no absolute right or possession of

it . There is no evidence on record to show that respondent is capable of

maintaining herself. On going through the order under challenge and hearing

learned counsel I find no illegality, irregularity or impropriety in the order under

challenge.

Resultantly, this revision petition fails. It is dismissed.

THOMAS P.JOSEPH,
Judge.

cks